COURT OF APPEALS DECISION DATED AND FILED May 6, 2008 David R. Schanker Clerk of Court of Appeals |
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NOTICE |
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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. |
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Appeal No. |
2006TR7530 |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT III |
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Plaintiff-Respondent, v. Daniel R. Carlson,
Defendant-Appellant. |
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APPEAL
from a judgment of the circuit court for
¶1
BACKGROUND
¶2 Shortly before 4 a.m. on November 11, 2006, Marathon County
Sheriff’s deputies Benjamin Shope and Ryan Berdal were dispatched to a car in
the ditch adjoining United States Highway 51.
After performing a battery of field sobriety tests, officers arrested
the car’s sole occupant, Carlson.
¶3 At the August 14, 2007 trial, Shope testified he observed
skid marks on Highway 51, stating:
The skid marks … came from the northbound lanes. I don’t know if it was the right or the left lane. After the vehicle left the highway, it entered the shoulder, and then the ditch area where there was construction. There is gravel underneath with two to three inches of snow on top. I saw skid marks go from the pavement, slide into the shoulder, and then into the ditch.
Shope testified that Carlson’s
car was running and, as he approached it, he noticed all four windows were
down. Shope made contact with Carlson,
who stated he was coming from
¶4 At the conclusion of the County’s case, Carlson moved to
dismiss the case, arguing the County failed to meet its burden of showing that
Carlson was operating on a public highway.
The County argued Carlson was still technically on the highway even
though the car was substantially off the road.
Carlson argued the term “highway” encompasses a finite area and his
vehicle was beyond the highway portion.
The court concluded Carlson operated on a public highway, stating:
You don’t drive all the way from
The state’s making an argument he was on the right-of-way…. I don’t know if he falls within that right-of-way. So the question is, was he driving on the public road, and I find that he drove on Highway 51, I-39.
The question is, how long was he
driving on the road before the police came.
When did the driving occur? When
did the police come? I can surmise from
it there were no injuries in evidence to the driver that he complained of that
he was not able to make an earlier phone call.
There were skid marks on the highway that were not obliterated by the
traffic…. There is no reason why he
would sit there and wait and wait and wait.
He had the ability to call. He
did call in.
The court then found Carlson
guilty of operating a motor vehicle while under the influence of an intoxicant.
DISCUSSION
¶5 Carlson argues the trial court lacked sufficient evidence to
find that his vehicle operated on a highway while he was under the influence of
an intoxicant. When we review a ruling
for sufficiency of the evidence, we will uphold the trial court’s verdict if
there is any credible evidence to support it.
See Pieper v. Neuendorf Transp. Co., 87
¶6 Carlson was convicted of operating while intoxicated as a first offense. In order to prove this, the County had to provide clear, satisfactory and convincing evidence that Carlson operated a motor vehicle on a public highway and that he was under the influence of an intoxicant such that his ability to operate his vehicle was impaired. See Wis. Stat. §§ 346.63(1)(a), 345.45. Carlson only challenges the County’s evidence that he was operating his vehicle on a public highway.
¶7 Here, a deputy testified that he saw skid marks across the
highway, slide onto the shoulder and then go into the ditch where Carlson’s
vehicle was found. It was cold on the
night of the accident and when the officers arrived at the scene, Carlson was
sitting in the car with all of the windows down. Additionally, dispatch logs identified
Carlson as the person who called to report the accident. Carlson told officers that he was driving up
from
By the Court.—Judgment affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.
[1] This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2). All references to the Wisconsin Statutes are
to the 2005-06 version unless otherwise noted.