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COURT OF
APPEALS DECISION DATED AND
RELEASED August
29, 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. 96-1245
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
RHONDA
L. ZIEGLER,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for DANE County: STUART A.
SCHWARTZ, Judge. Affirmed.
DEININGER,
J.[1] Rhonda
Ziegler appeals from a judgment convicting her of first-offense operating a
motor vehicle while under the influence of an intoxicant (OMVWI), in violation
of § 346.63(1)(a), Stats. She claims error in the trial court's
admission of an Intoxilyzer test result without expert testimony, arguing that
the State's failure to establish the arresting officer's compliance with
§ 343.305, Stats., deprives
it of the benefits of automatic admissibility of the test result. We conclude that we need not reach this
issue because Ziegler's conviction for OMVWI is adequately supported by the
other evidence of intoxication in the record.
Accordingly, we affirm.
State trooper Tracy Fuller testified at trial
that he first observed Ziegler's car as it turned onto East Washington Avenue
in Madison and the driver attempted to parallel park. Ziegler's initial efforts were less than successful, and the car
blocked the flow of vehicles in the right lane of traffic. Her car then collided with both the vehicle
ahead of and behind hers, before it "jerked forward" and
stopped.
Ziegler
got out of her car and walked toward Fuller, who asked to see her driver's
license. The trooper noted an odor of
alcoholic beverages and asked if Ziegler had been drinking. She admitted to having had "a few
beers" some time ago. The trooper
also observed Ziegler to be having considerable difficulty keeping her balance
and asked her to perform field sobriety tests.
During the "one legged stand," Ziegler lost her balance and
fell up against a truck. During the
"walk and turn," she "missed most of those
steps ... as she lost her balance." On the horizontal gaze nystagmus, the trooper observed
"choppiness in both eyes."
Ziegler
was then arrested for OMVWI and taken to state patrol district headquarters for
processing and administration of the Intoxilyzer test. The "Informing the Accused" form
that the trooper employed did not reflect an amendment to § 343.305(4), Stats., which changed the counting
period from 5 years to 10 years for prior violations which might result in an
order for immobilization, seizure or ignition interlock of a vehicle.[2] Fuller testified that he "had scratched
this, this five-year period thing out because we were then in the process of
getting the new informing the accused."
Ziegler
objected to the admission of the Intoxilyzer test result because the State
offered no expert testimony to lay a foundation for its admissibility. She argued that under State v. Zielke,
137 Wis.2d 39, 403 N.W.2d 427 (1987), a failure to strictly follow
§ 343.05, Stats., results in
the State's loss of the benefit of automatic admissibility of the Intoxilyzer
test result. See id.
at 49, 403 N.W.2d 431.
The
trial court overruled Ziegler's objection to automatic admissibility and
admitted the Intoxilyzer test result.
In a subsequent court proceeding, the trial court found the State had
met its burden of proof and entered a judgment of conviction for first-offense OMVWI.
We
need not consider whether the trial court properly admitted the results of
Ziegler's blood alcohol concentration test without expert testimony. Even if the blood alcohol concentration
test had not been admitted, a conviction for OMVWI is sustainable on this
record. Although Ziegler's blood
alcohol content, as revealed by the Intoxilyzer test, is relevant to whether
she is guilty of OMVWI, it is not a necessary element of proof in an OMVWI
prosecution. State v. Burkman,
96 Wis.2d 630, 642-643, 292 N.W.2d 641, 647 (1980).
Ziegler
asserts in the last sentence of her brief that "[t]he remaining evidence
adduced at trial was insufficient to support a finding of guilt," but
she fails to identify any specific
insufficiencies in the record. Here,
the trial court had before it the unrebutted testimony of the arresting officer
who described a very erratic parking maneuver involving two minor collisions
and the blocking of traffic, the odor of alcohol, admission of consumption,
unsteady balance, and observed failures on three sobriety tests. The trial court's finding that the State met
its burden of presenting clear, satisfactory and convincing evidence that
Ziegler operated a motor vehicle while under the influence of an intoxicant is
well supported in the record.
By
the Court.—Judgment affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.