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Lower BAC result wasn’t a new factor meriting sentencing modification

State v. Rebecca Sue Ferraro, 2021AP1654-CR, District 2, 6/8/22 (one-judge decision; ineligible for publication); case activity (including briefs)

Ferraro pled to and was sentenced for OWI, third offense, before the blood alcohol test result of her blood draw was available. At sentencing the preliminary breath test result was bandied about as one of the aggravating factors. A few days after sentencing, the BAC result arrived. Turns out it was lower than the PBT. That is not a new sentencing factor because it’s not highly relevant to the sentence imposed; and even if it was, the circuit court properly concluded it didn’t merit sentence modification.

¶16     A new factor is defined as a fact unknown at the time of sentence that is highly relevant to the imposition of the sentence. Ferraro contends the lower BAC fits that definition. This court disagrees. Although the actual blood test result was unknown to the circuit court at the time of sentencing, that court knew that: (1) Ferraro had been driving while intoxicated; (2) her PBT was .213; (3) Ferraro had admitted she drank and drove; (4) she had failed field sobriety tests; and (5) she had violated the bond conditions set in her pending Rock County OWI case. Although the blood test showed a lower alcohol concentration than the PBT, it was still more than two times the legal limit…. The blood test result also confirmed what the sentencing court already knew—that Ferraro drove while very intoxicated. Moreover, the sentencing court’s concern focused primarily on the fact that Ferraro committed this offense while out on bond from another OWI, third offense, and while she was ordered not to drive at all. Ferraro’s decision to drink and drive in violation of the Rock County bond order, together with the fact that Ferraro repeatedly violated OWI law, motivated the sentence imposed.

¶17     Even if the lower BAC qualified as a new factor, the postconviction court did not erroneously exercise its discretion when it concluded the lower result did not justify sentence modification. The blood test alcohol concentration, though lower than the breath test, was still more than twice the legal limit. …. Further, Ferraro sought to resolve this case quickly, as evidenced by her lawyer’s request for a speedy trial, Ferraro’s repeated communications to the circuit court while she was in jail, and a request for a plea/sentencing hearing the same week she waived her preliminary hearing. It is clear from the plea transcript that the parties knew the state lab had not yet provided the blood test result but that even absent this information, Ferraro wanted to resolve this case. Ferraro certainly could have delayed the sentence to wait for those results. When the sentencing court asked her directly if there was any reason to postpone sentencing, Ferraro responded that there was not. Based on all of these factors, the postconviction court did not erroneously exercise its discretion when it determined the lower blood test result, which came back postsentencing, did not warrant sentence modification.

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