|
COURT OF APPEALS DECISION DATED AND FILED January 10, 2013 Diane M. Fremgen Clerk of Court of Appeals |
|
NOTICE |
|
|
|
This opinion is subject to further editing.� If published, the official version will appear in the bound volume of the Official Reports.� A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals.� See Wis. Stat. � 808.10 and Rule 809.62.� |
|
����������� APPEAL from a judgment of the circuit court for Sauk County:� james evenson, Judge.� Affirmed.�
�1������� LUNDSTEN, P.J.[1] Stephen Tollaksen appeals a judgment of the circuit court finding him guilty of operating a motor vehicle with a prohibited alcohol concentration, as a third offense.� Tollaksen argues that the circuit court erred when it denied his motion to suppress evidence of his blood test results.� Tollaksen contends that he was denied the opportunity to take an additional test to determine the presence of alcohol in his system, in violation of Wis. Stat. � 343.305.� The circuit court found that Tollaksen had not requested an additional test, and thus denied the motion to suppress.� I affirm the circuit court.
Background
�2������� At about 2:00 a.m. on August 27, 2010, Tollaksen�s vehicle was stopped for invalid registration.� While the investigating officer was speaking with Tollaksen, the officer noticed that Tollaksen�s eyes were glassy and bloodshot and that his speech was slurred.� The officer also smelled an odor of intoxicants on Tollaksen.� The officer asked Tollaksen to perform field sobriety tests.� Based on Tollaksen�s performance on the field sobriety tests and the officer�s other observations, the officer administered a preliminary breath test, which indicated a blood alcohol concentration of .14.� The officer then placed Tollaksen under arrest for operating a motor vehicle while under the influence.�
�3������� The officer transported Tollaksen to the Sauk County Jail.� Upon their arrival at the jail, the officer read the informing the accused form to Tollaksen.� Tollaksen initially consented to a blood draw test, and was escorted into the jail for its administration.� The testimony is in conflict as to what happened next.� It is sufficient here to say that Tollaksen challenges the circuit court�s finding that Tollaksen did not request a test in addition to the blood draw test.
�4������� Tollaksen moved to suppress the evidence of his intoxication, alleging that he requested an additional test and that the officer failed to provide it.� The circuit court denied the motion to suppress.�
Discussion
�5������� Tollaksen makes two arguments in support of his assertion that he was entitled to suppression of the blood draw test.� First, Tollaksen argues that the officer deviated from the standard informing the accused form, thereby confusing Tollaksen and interfering with his right to request an alternative test.� Second, Tollaksen contends, as a factual matter, that he did request an alternative test and was improperly denied the test.� I reject both arguments.
�6������� Wisconsin Stat. � 343.305 establishes requirements for law enforcement agents regarding the administration of tests for intoxication.� If a person is arrested on suspicion of operating a vehicle while intoxicated, law enforcement officials may request that the person submit to a primary test to determine the presence of an intoxicant.� Wis. Stat. � 343.305(3).� If the person submits to the primary test, he or she must be permitted upon request to take an alternative test provided by the agency or must be allowed a reasonable opportunity to get a test of his or her own choice, at his or her own expense.� Wis. Stat. � 343.305(5)(a).�
�7������� Law enforcement agents are required to inform the person subject to the test of his or her options by reading to him or her a form prescribed by statute.� Wis. Stat. � 343.305(4).� In practice, this form is referred to as the �Informing the Accused� document. �
�8������� The request for an alternative test may be made before or after the primary test is administered.� State v. Schmidt, 2004 WI App 235, �31, 277 Wis. 2d 561, 691 N.W.2d 379.� However, this request must be clearly a request for an additional test, not a different test instead of the primary test.� Id., �11.� A request for a specific type of test instead of the primary test is insufficient to establish a request for an additional test.� Id.�
�9������� Both of Tollaksen�s arguments involve challenges to express or implicit fact finding by the circuit court.� A circuit court�s findings of fact will be upheld unless those findings are clearly erroneous.� Id., �13.� Whether the facts show that a request for an alternative test pursuant to Wis. Stat. � 343.305 was made is a question of law reviewed de novo.� Id.
�10����� Tollaksen first asserts that the officer deviated from the standard informing the accused form and that, as a result, Tollaksen was confused by the officer�s deviation.� Tollaksen contends that this confusion �frustrated [Tollaksen�s] request to invoke his statutory right for an alternative test.�� Pointing to his own testimony, Tollaksen asserts that, when the officer was reading from the form that the accused has the right to a test done at his or her own expense, the officer added that �it wasn�t like they were going to let [Tollaksen] out of there to go do that.��
�11����� I reject this argument because it is made for the first time on appeal.� In effect, Tollaksen is asking me to resolve a factual dispute in the testimony.� Tollaksen did not ask the circuit court to resolve this dispute. �See State v. Rogers, 196 Wis. 2d 817, 825-27, 539 N.W.2d 897 (Ct. App. 1995) (to preserve arguments for appeal, a party must first raise them before the circuit court).�
�12����� Moreover, it appears that the circuit court would have resolved this dispute against Tollaksen.� The record reveals that, in general, the circuit court found the officer�s testimony more credible than Tollaksen�s testimony.� And, on this topic, the officer testified that he did not deviate in any way from the standard informing the accused form.�
�13����� Tollaksen�s second argument is also factual.� He asserts that he requested, but was not given, an additional test.� Essentially, Tollaksen argues that the circuit court should have rejected the officer�s testimony that Tollaksen did not request an additional test because the officer did not recall other specific facts about Tollaksen�s arrest and the administration of the primary test.� This argument fails because the circuit court resolved this factual dispute in favor of the officer.�
�14����� Even assuming Tollaksen did request a different test, the circuit court made a reasonable determination that Tollaksen requested a different test instead of, and not in addition to, the blood draw.� Tollaksen testified that he asked the officer if he �could have a urinalysis instead of a blood draw� because he did not like needles.� Based on this testimony, the circuit court determined that Tollaksen did not make a definitive request for an additional test.� This finding is plainly supported by the record. �
����������� By the Court.�Judgment affirmed. �
����������� This opinion will not be published.� Wis. Stat. Rule 809.23(1)(b)4.
[1] This appeal is decided by one judge pursuant to Wis. Stat. � 752.31(2)(c) (2009-10).� All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.�