|
COURT OF
APPEALS DECISION DATED AND
RELEASED August
22, 1996 |
NOTICE |
|
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 96-0534
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
CITY
OF EDGERTON,
Plaintiff-Respondent,
v.
ROBERT
NAATZ,
Defendant-Appellant.
APPEAL
from an order of the circuit court for Rock County: JAMES DALEY,
Judge. Affirmed.
DYKMAN,
J. This is a single-judge appeal decided pursuant to
§ 752.31(2)(b), Stats. Robert Naatz appeals from an order affirming
a municipal court judgment convicting him of both operating a motor vehicle
while intoxicated (OMVWI) in violation of City of Edgerton ordinance
§ 9.01, which adopts § 346.63(1)(a), Stats., and operating a motor vehicle with a prohibited blood
alcohol content (BAC) in violation of City of Edgerton ordinance 9.01, which
adopts § 346.63(1)(b), Stats. We conclude that although Naatz attacks his
conviction of BAC, he has not contested his conviction of OMVWI. We therefore affirm.
Naatz
was charged with OMVWI and BAC. The
municipal court for the City of Edgerton denied his motion to suppress evidence
of his blood alcohol concentration tests and found him guilty of both
charges. His convictions were affirmed
on appeal to the circuit court. He
appeals to this court.
Naatz
correctly notes that Wis. Adm. Code
§ Trans 311.06(3)(a) requires a
law enforcement officer to observe a breath test subject for twenty minutes
prior to collection of a breath specimen to be sure that during that time the
subject did not ingest alcohol, regurgitate, vomit or smoke. He contends that the evidence is insufficient
to show that the officer who arrested him observed him for twenty minutes
before Naatz took a breath test. He
concludes that evidence of his blood alcohol concentration is therefore not
entitled to automatic admissibility, citing City of New Berlin v. Wertz,
105 Wis.2d 670, 314 N.W.2d 911 (Ct. App. 1981).[1] He requests that we reverse the judgment of
the circuit court and remand with directions to the Edgerton Municipal Court to
grant his motion to suppress the results of his breath test.
We
need not address Naatz's assertions.
Naatz was convicted of both BAC and OMVWI. Even if the result of his breath test is suppressed, the judgment
convicting him of OMVWI remains. Though
the result of Naatz's breath test is relevant evidence to determine whether he
is guilty of OMVWI, he has not argued that in the absence of the breath test
result, the remaining evidence is insufficient to support a conviction for
OMVWI. We generally do not decide
issues not raised on appeal. Waushara
County v. Graf, 166 Wis.2d 442, 451, 480 N.W.2d 16, 19, cert. denied,
506 U.S. 894 (1992). We therefore do
not address this issue.
By
the Court.—Order affirmed.
Not
recommended for publication in the official reports. See Rule
809.23(1)(b)4, Stats.