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COURT OF APPEALS DECISION DATED AND RELEASED FEBRUARY 11, 1997 |
NOTICE |
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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(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-2483
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
COUNTY OF OUTAGAMIE,
Plaintiff-Respondent,
v.
DAVID L. MAASS,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Outagamie County:
HAROLD V. FROEHLICH, Judge. Affirmed.
LaROCQUE, J. David Maass appeals a judgment of
conviction for OWI (first offense civil).
He contends that the trial court should have granted his motion to
suppress the results of a blood test because the police failed to honor Maass's
request to administer a breath test as required by statute. Maass relies upon the holding in State
v. Renard, 123 Wis.2d 458, 367 N.W.2d 237 (Ct. App. 1985). Renard applied the provisions
of § 343.305(5), Stats., and
held that the police who administered a blood alcohol test had a duty to comply
with the subject's request for an additional test of his breath upon
request. Because the trial court
finding that Maass's request for a breath test was as an alterative to and not
in addition to the blood test is not clearly erroneous, this court affirms.
The arresting officer
and Maass gave conflicting testimony at the hearing to suppress the results of
the blood test. Outagamie County
sheriff's deputy Phillip Christenson testified that after he arrested Maass for
OWI, Maass was asked to take a blood test, and also was read the following
advice from the "Informing the Accused" form:
After
submitting to chemical testing, you may request the alternative test that this
law enforcement agency is prepared to administer at its expense or you may
request a reasonable opportunity to have any qualified person of your choice
administer a chemical test at your expense.
According to
Christenson, when Maass was given this advice, he indicated that he would like
to take a breath test. Christenson
explained that after taking the blood test, he could request a breath test. Maass indicated that he understood his
rights and consented to a blood test.
According to Christenson, after the blood test, Maass did not request a
breath test and none was given.
In contrast to
Christenson's testimony, Maass told the court that he understood his right to
an alternative test and requested a breath test after the completion of the
blood test. He further testified that
the officer declined to administer the breath test. The trial court found that it believed the officer's version of
events and not Maass's.
Maass concedes for
purposes of appeal that the version of events described by the officer is
accurate. He therefore contends that
the application of those facts to the statutory requirements is a question of
law.
This court initially
rejects Maass's contention that this case is governed by Renard. In that case the circuit court found that
the defendant requested an additional test, based upon the following
evidence: "Renard and his wife
claim that he continued to request the breathalyzer test after he consented to
the blood test. The officer denies this
contention." Id. at
460, 367 N.W.2d at 238. The Renard
court upheld the trial court's finding because it was not contrary to the great
weight and clear preponderance of the evidence. Id.[1]
The officer did not
interpret Maass's request for a breath test in this case as a request for an
additional test. Rather, he interpreted
Maass's remark as a request for a breath test as an alternative to taking a blood
test. The officer advised Maass that if
he wished a breath test, he could request one at the conclusion of the blood
test. Maass did not contend that he
misunderstood the advice. To the
contrary, he advised the trial court that he understood the advice, and that he
requested a breath test after the blood test was complete. This is the testimony that the trial court
found not credible. Implicit in the
trial court's decision to deny the motion to suppress the blood test result was
the finding that Maass's statement to the officer was not a request for an
additional test. Neither of these
findings is clearly erroneous.
The
drawing of an inference on undisputed facts when more than one inference is
possible is a finding of fact which is binding upon the appellate court. It is not within the province of ... any
appellate court not to accept an inference drawn by a factfinder when the
inference drawn is a reasonable one.
State
v. Friday, 147 Wis.2d 359, 370-71, 434 N.W.2d 85, 89 (1989). The motion to suppress was therefore
properly denied.
By the Court.—Judgment
affirmed.
This opinion will not be
published. Rule 809.23(1)(b)4, Stats.