COURT OF APPEALS DECISION DATED AND FILED March 16, 2010 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. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT III |
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State of
Plaintiff-Respondent, v. Anthony J. Nelson,
Defendant-Appellant. |
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APPEAL
from a judgment of the circuit court for
Before
¶1 PER CURIAM. Anthony Nelson appeals a
judgment of conviction, entered pursuant to a plea agreement, for homicide by
negligent operation of a vehicle, party to the crime, and operating a motor
vehicle while intoxicated, fifth or subsequent offense. The issue is whether a deputy sheriff from
¶2
¶3 Nelson argues the seizure of his blood was unlawful because a law enforcement officer has no authority to obtain a blood sample outside his jurisdiction. We reject Nelson’s argument.
¶4 The plain language of Wis. Stat. § 349.03(4)[2] provides that “[i]f a violation under [Wis. Stat.] s. 343.305 … occurs within a law enforcement officer’s jurisdiction, he or she may enforce the violation anywhere in the state.” Section 343.305(3) specifically permits breath, blood or urine samples pertaining to a group of laws, including Wis. Stat. § 346.63, operating while intoxicated; Wis. Stat. § 940.09, homicide by intoxicated use of a vehicle; and Wis. Stat. § 940.25, injury by intoxicated use of a vehicle.
¶5 In this case, deputy Graf was enforcing Wis. Stat. § 940.09 when he
requested a sample of Nelson’s blood. The
implied consent law authorizes officers to enforce Wis. Stat. § 940.09 by requesting a suspect to provide a
blood sample in either or both of two situations. First, a sample may be requested when the
officer detects any presence of alcohol on a person who operated a vehicle
involved in an accident that caused death.
Wis. Stat. § 343.305(3)(ar). An arrest is not a prerequisite to such a
request.
¶6 Here, both subsections permitted Graf to ask Nelson to provide a blood sample. Graf detected the odor of intoxicants on Nelson, and his eyes and speech led the deputy to reasonably believe Nelson was under the influence of intoxicants. Graf also had good reason to believe Nelson had been operating the vehicle in which the passenger died. The van was registered to Nelson. It had no back seats and thus could not accommodate more than two persons. There was no one else at the scene besides Nelson and the deceased person in the front passenger seat. Moreover, Nelson had an injury to his forehead consistent with a crack in the windshield on the driver’s side of the van. Accordingly, Graf was justified in requesting a blood sample under Wis. Stat. § 343.305(3)(ar). However, because Nelson was arrested for homicide by intoxicated use of a vehicle,[3] the request for blood was also authorized under § 343.305(3).[4]
By the Court.—Judgment affirmed.
This opinion will not be
published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] Nelson agreed to provide a blood sample.
[2] References
to
[3] Although Nelson disputes whether he was under arrest, Graf testified he arrested Nelson at the time he read Nelson the Informing the Accused form, which also states the accused has been arrested for an offense that involves driving or operating a motor vehicle while under the influence of alcohol or drugs, or both.
[4] Nelson
failed to file a reply brief in response to the State’s statutory
arguments. Although we decide the merits
of Nelson’s appeal, we note arguments not refuted are deemed conceded. See Charolais Breeding Ranches, Ltd. v. FPC
Secs. Corp., 90