COURT OF APPEALS DECISION DATED AND FILED September 29, 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. |
2009TR9725 |
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STATE OF |
IN COURT OF APPEALS |
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DISTRICT II |
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Village of Pleasant Prairie, Plaintiff-Respondent, v. Robert J. Brunello, Jr.,
Defendant-Appellant. |
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APPEAL
from a judgment of the circuit court for
¶1 ANDERSON, J.[1] Robert J. Brunello, Jr., appeals from an order denying his motion to suppress chemical test results. The trial court denied his suppression motion after determining Brunello’s early request for a blood test expressed his preference for the primary test rather than a demand for a blood test as the alternative test permitted by Wis. Stat. § 343.305(5). We conclude that the trial court was correct; Brunello’s statutory right to an alternative test was not violated. We uphold the trial court’s denial of Brunello’s motion to suppress and affirm the judgment of conviction.
¶2 After Brunello was arrested on August 22, 2009, for operating
a motor vehicle while intoxicated (OWI), he was taken to the
¶3 After the form was read to Brunello, he was asked if he would submit to a breath test and he stated that he wanted a blood test. Schaffer told him that the Village’s primary test was the breath test. Brunello ultimately submitted to a breath test and never renewed his request for a blood test.
¶4 Brunello moved the court to suppress the chemical breath test
results because he was denied his right to an alternative test under Wis. Stat. § 343.305(5). Schaffer, Jung and Brunello all testified at
the hearing. The police officers
testified that while Brunello demanded a blood test after having the Informing the
Accused form read to him, he did not renew that request following the breath
test. Brunello testified, “I just said I
wanted a blood test, that I would rather have a blood test.” The court found the officers’ testimony to be
more credible than Brunello’s and concluded that Brunello’s request for a blood
test was done “as a preference and not as a request to call into question the
results of any first test which as of that point had not yet been given.” Brunello appeals.
¶5 Ordinarily, a trial court’s decision to admit or exclude
evidence is a discretionary determination which will be upheld on appeal if it
has a reasonable basis and was made in accordance with accepted legal standards
and the facts of record. State
v. Johnson, 181
¶6 The trial court had to resolve conflicting testimony and it held:
I think it would be inconsistent with the procedures of the department with their history in dealing with this to totally discount the officers’ testimony who at that point were sober and unimpaired presumably so that they could make these judgments with respect to how the case should be handled and whether a sufficient request for additional testing had been made.
We are bound by the court’s
assignment of credibility to the conflicting testimony, see State v. Toy, 125
¶7 Brunello contends that Schaffer was required to use reasonable diligence to honor his request for a blood test and, because he did not, the court erred in not suppressing the results. He also argues that the court erroneously concluded that he was stating a preference for the initial test and not making a demand for an alternative test.
¶8
¶9 Whether a police officer has made a reasonably diligent
effort to comply with the statutory obligations is an inquiry that must
consider the totality of circumstances as they exist in each case. Stary, 187
¶10 An OWI suspect’s request for an alternate test must be
evaluated under a reasonableness standard and in light of the totality of the
circumstances. This is already the law when
we assess a police officer’s response to a suspect’s request for an alternate
test. See Wis. Stat.
§ 343.305(5)(a). “Whether the officer made a reasonably
diligent effort to comply with his [or her] statutory obligations is an inquiry
that must consider the totality of circumstances as they exist in each case.” Stary, 187
¶11 Under the totality of the circumstances, we conclude that Brunello’s statement—that he wanted a blood test—was not a request for an alternate test but a statement of his preference for the first test. The inquiry was made when Schaffer was explaining Brunello’s obligation to submit to a chemical test under the implied consent law. Schaffer responded to Brunello’s request by explaining that the Pleasant Prairie police department had designated the breath test as the primary test and the blood test as the alternate test. When it appeared that Brunello was adamant about wanting the blood test first, Schaffer took the time to explain to him that the blood test was not offered as the first test. After this explanation, Brunello consented to the breath test. The trial court drew the reasonable inference that Brunello was attempting to designate the primary test that he would submit to; this is an inference we are bound by. A reference to a blood test when the officer is reading the Informing the Accused form cannot be elevated to a request for an alternate test when, after completing the breath test, Brunello never made a request for an alternate chemical test.
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)(g) (2007-08). All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.