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COURT OF APPEALS DECISION DATED AND RELEASED September 21, 1995 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No.
95-1522-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
ERIN GALLAGHER,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Lafayette County:
WILLIAM D. JOHNSTON, Judge. Affirmed.
GARTZKE, P.J. Erin Gallagher appeals from a judgment
convicting her of causing injury by operating a motor vehicle with a blood
alcohol level over .10% contrary to § 346.63(2)(a)2, Stats.[1] Gallagher seeks review of an order denying
her motion to suppress medical records obtained by subpoenas required to be
supported by probable cause under § 968.135, Stats. The issue is
whether probable cause was shown. We
conclude it was and we therefore affirm.
On June 10, 1994,
Gallagher was the driver and seriously injured in a one-car accident. She was transported by ambulance to Memorial
Hospital in Darlington, Wisconsin, and soon thereafter by helicopter to
University Hospital in Madison. Medical
staff at both hospitals administered blood alcohol tests for diagnostic
reasons. No law enforcement agent
requested that the tests be given.
On October 18, 1994, the
Lafayette County district attorney submitted the pertinent affidavit supporting
the request for subpoenas. She states
the sheriff's department provided her with a police report which showed that on
June 10, 1994, Gallagher was operating a motor vehicle involved in the
accident, was injured and was transported to Memorial Hospital and then to
University Hospital.
The affidavit continues,
Deputy
Sides indicates that Erin L. Gallagher at the time of the accident may have been
under the influence of alcohol. Deputy
Sides reports that Scott A. Garthwaite, who was a passenger in the vehicle
Gallagher was operating at the time of the accident, reported to Deputy Sides
that he had met Erin L., Gallagher at the Filling Station tavern in Darlington
on the night of June 9, 1994, and when it was closing time, he and Erin L.
Gallagher went to a party in Illinois.
Deputy
Sides further reported that he later found out that Erin L. Gallagher and Scott
A. Garthwaite had gone to Nora, Illinois which has an all night tavern and was
informed that Erin L. Gallagher and Scott A. Garthwaite had closed the tavern
in Nora, Illinois.
Lafayette
County Sheriff's Deputy and Sergeant Steven M. McQuaid reports that he
interviewed Scott A. Garthwaite on September 8, 1994. Scott A. Garthwaite reported to Sergeant McQuaid that he and Erin
L. Gallagher had been to an all night tavern in Nora, Illinois prior to the car
accident and had left the bar when it closed at approximately 6:00 a.m. Scott A. Garthwaite stated to Sergeant
McQuaid that although he did not see Erin L. Gallagher drinking, she may have
been drinking alcohol while she was playing pool, with the owner of the all
night tavern.
Your affiant makes this affidavit in support of
a subpoena for production of blood test results acquired by Memorial Hospital
of Lafayette County upon the admission of Erin L. Gallagher to said hospital or
to the U.W. Hospital and Clinics.
The parties agree that
this court should defer to the trial court's determination that probable cause
existed, and its determination should stand unless the defendant establishes
that the facts are clearly insufficient to support the probable cause finding. State v. Swift, 173 Wis.2d
870, 883, 496 N.W.2d 713, 718 (Ct. App. 1993).
The Swift court said that probable cause exists when the
issuing judge is apprised of sufficient facts to excite an honest belief in a
reasonable mind that the objects sought are linked with the commission of a
crime and that the object sought will be found in the place to be
searched. The amount of evidence
necessary to establish probable cause under § 968.12, Stats., is less than that required to
support a bindover for trial. Id.
at 884-85, 496 N.W.2d at 719. The court
continued that the evidence need only be such that a reasonable judge can
determine that there is a fair probability that contraband or evidence of a
crime will be found in a particular place.
Id. at 884, 496 N.W.2d at 719.
Gallagher asserts that
the affidavit fails to state two notable and necessary facts: first, that Gallagher was drinking in the
taverns, and second, that blood test results could be found at either hospital. We disagree.
While persons may spend
time in a tavern without drinking, the trial court could reasonably infer that
a person who stays in one Wisconsin tavern until closing time, goes to a second
"all night tavern" in Illinois and leaves that tavern at 6:00 a.m.
has been drinking. The inference is
strong. The statement of Gallagher's
companion that he never saw her drinking but "she may have been drinking
alcohol while she was playing pool" reduces but does not eliminate the
strength of the inference.
It is reasonable to
infer that a person injured in an automobile accident would be subjected to
blood tests at the hospital to which she had been admitted. Therefore it is fairly probable that blood
test results will be found at each hospital.
Because we conclude that
probable cause existed to issue the subpoenas, we affirm the judgment.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.