COURT OF APPEALS

DECISION

DATED AND FILED

 

July 22, 2004

 

Cornelia G. Clark

Clerk of Court of Appeals

 

 

 

NOTICE

 

 

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. 

 

 

 

 

Appeal No. 

04-0230-CR

 

Cir. Ct. No.  02CT003417

STATE OF WISCONSIN   

IN COURT OF APPEALS

 

DISTRICT IV

 

 

 

 

State of Wisconsin,

 

                        Plaintiff-Respondent,

 

              v.

 

Michael A. Decker,

 

                        Defendant-Appellant.

 

 

 

            APPEAL from  judgments of the circuit court for Dane County:  gerald c. Nichol, Judge.  Affirmed. 

1                        DYKMAN, J.[1]   Michael Decker appeals from judgments of conviction for operating a motor vehicle while intoxicated (OWI) second offense and for operating a motor vehicle while having a prohibited alcohol concentration second offense in violation of Wis. Stat. § 346.63(1)(a) and (b).  He contends that the trial court erred by denying his motion to exclude from evidence the results of an Intoximeter EC/IR breath test.  Decker asserts that the Department of Transportation approved the instrument using “standards.”  He contends that these standards should have been established following proper rule-promulgation procedures under Wis. Stat. ch. 227, but were not. 

2                        Both parties agree that this case raises the same legal issue and presents the same evidence as County of Dane v. Winsand, 2004 WI App 86, ____ Wis. 2d ____, 679 N.W.2d 885, where we said:

Winsand has not established that … the section chief used standards that meet the definition of Wis. Stat. § 227.01(13) but were not promulgated as a rule.  In addition, he does not argue that the section chief did not comply with § 343.305(6)(b) or with the regulations in Wis. Admin. Code § Trans 311.  Accordingly, the test results are admissible under § 343.305(5)(d) with the benefits of Wis. Stat. § 885.235.  The trial court therefore correctly denied Winsand’s motion to exclude the test results. 

Id., ¶13. 

3                        We therefore affirm. 

            By the Court.—Judgments affirmed.

            Not recommended for publication in the official reports.  See Wis. Stat. Rule 809.23(1)(b)4. 

 

 

 


[1]  This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2)(c) (2001-02).  All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.