COURT OF APPEALS DECISION DATED AND FILED September 8, 2010 A.
John Voelker Acting 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 |
IN COURT OF APPEALS |
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DISTRICT II |
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City of
Plaintiff-Respondent, v. Glen A. Niemuth,
Defendant-Appellant. |
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APPEAL
from an order of the circuit court for
¶1 REILLY, J.[1] Glen A. Niemuth appeals from an order of the
circuit court affirming a judgment of the municipal court of the City of
¶2 On
May 7, 2009, Niemuth was arrested for operating a motor vehicle while
intoxicated. On August 12, 2009, a trial
was held before the City of
¶3 On
October 12, 2009, the circuit court, having reviewed the transcript, rendered a
written decision holding that the municipal court’s findings were not clearly
erroneous and affirmed Niemuth’s guilt.
On October 21, 2009, Niemuth requested the circuit court to reconsider its
decision, arguing that hearsay testimony was allowed and that the evidence did
not support a finding of guilt by clear and convincing evidence. The circuit court denied the motion to
reconsider on October 22, 2009. This
appeal followed.
¶4 This
case is governed by Wis. Stat. § 800.14(5),
which provides for a transcript review. In
an appeal based upon a transcript review, this court applies the same deference
to the municipal court decision as the circuit court does.
¶5 Niemuth
was charged with operating a motor vehicle while under the influence of an
intoxicant pursuant to a traffic citation.
The citation charged that on May 7, 2009, at 1:37 a.m., Niemuth was
operating a motor vehicle while intoxicated.
Based upon the testimony of the arresting officer and Niemuth, the municipal
court found that the City had met its burden of proof on the charge set forth
in the citation. We now examine the
record to determine whether the municipal court reached a result which the
evidence supports. Metzl, 124
¶6 The record
reveals: the arresting officer testified that at approximately 1:20 a.m. on May
7, 2009, he observed a vehicle with a missing or defective right mirror and
expired plates. He stopped the vehicle
and ascertained that Niemuth had been driving.
He smelled alcohol coming from Niemuth’s vehicle and observed Niemuth to
have bloodshot eyes. Officer Sawyer
requested that Niemuth perform sobriety tests; Niemuth failed all three
sobriety tests. Niemuth indicated to the officer that he drank four to five
beers that night, and that he was on his way home from the bar. The result of .11 on the intoximeter was
placed into evidence without objection.
¶7 Our
review of the trial record persuades us that sufficient facts exist to support
the municipal court’s ultimate determination. The decision of the municipal court,
therefore, will not be disturbed on appeal.
By
the Court.—Order
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)(b) (2007-08). All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.