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COURT OF
APPEALS DECISION DATED AND
RELEASED January
18, 1996 |
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. 95-1927
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
COUNTY
OF DANE,
Defendant-Respondent,
v.
DONALD
G. BLATTERMAN,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Dane County: MICHAEL B. TORPHY, Judge.
Affirmed.
DYKMAN,
J. This is a single-judge appeal
decided pursuant to § 752.31(2)(c), Stats. Donald G. Blatterman appeals from a judgment
convicting him of operating a motor vehicle while intoxicated (OMVWI), contrary
to § 69.01 of the Dane County ordinances, which incorporates
§ 346.63(1)(a), Stats. Blatterman raises three issues: (1) whether a failure to follow
§ 343.305, Stats., makes the
result of an Intoxilyzer test inadmissible; (2) whether the police's
failure to permit Blatterman to obtain an additional blood alcohol test
rendered the Intoxilyzer test inadmissible; and (3) whether the trial
court denied Blatterman due process of law by restricting cross-examination of
a prosecution witness.
We
conclude that the results of the Intoxilyzer test were irrelevant because
Blatterman was convicted of OMVWI, not operating with a prohibited blood
alcohol concentration, and he has not argued that the evidence was insufficient
without the Intoxilyzer test.
Similarly, we further conclude that because Blatterman was convicted of
OMVWI, any failure to permit an additional test is irrelevant. Finally, we conclude that even if the trial
court prevented Blatterman from cross-examining a State's witness, the
testimony given by that witness was irrelevant. We, therefore, affirm.
BACKGROUND
Shortly
after 9:00 p.m. on September 10, 1993, a Dane County Deputy Sheriff was driving
on a road in the Township of Dunn. An
approaching van crossed the centerline of the road by about four or five feet
into his lane of traffic, causing him to take evasive action. The van missed striking the deputy's marked
squad car by about one foot. The deputy
pursued the van and pulled it over.
Blatterman was driving the van.
The deputy noticed slurred speech and a moderate odor of intoxicants on
his breath. He asked Blatterman to do
field tests, some of which he had difficulty completing. The deputy arrested Blatterman and took him
to the McFarland Police Department for an Intoxilyzer test. The deputy issued two citations for
violating § 69.01 of the Dane County ordinances. The first citation incorporated § 346.63(1)(a), Stats., which prohibits OMVWI, and the
second citation incorporated § 346.63(1)(b), operating a motor vehicle
with a prohibited blood alcohol concentration.
After
completing the Intoxilyzer test, the deputy told Blatterman that the
alternative test authorized by his agency was either a blood test at Dane
County's expense or a urine test at Blatterman's expense. Blatterman did not request a blood
test. He could have had a urine test at
his own expense upon the completion of the paperwork for his release, but
apparently he did not do so.
We
have taken the preceding facts from the transcript of Blatterman's trial. Blatterman did not testify, so the only
testimony was that of the deputy and the Intoxilyzer operator. We will now address Blatterman's assertions
of error.
DISCUSSION
Section
343.305(5)(d), Stats., which incorporates
§ 885.235, Stats., makes the
result of a breath test admissible at a trial.
For a breath test to be admissible, the procedures set out in
§ 343.305(6)(c) must be followed. State
v. Grade, 165 Wis.2d 143, 149, 477 N.W.2d 315, 317 (Ct. App. 1991). Blatterman asserts that these procedures
were not followed for the Intoxilyzer machine used to test his breath. Therefore, the result of his breath test
should have been suppressed.
But
Blatterman was not convicted of operating a motor vehicle with a prohibited
blood alcohol concentration. The trial
court dismissed that charge. The trial
court convicted him of OMVWI, a different violation prohibited by the county
ordinance incorporating § 346.63(1)(a), Stats. Though Blatterman's blood alcohol content is
relevant to determine whether a person is guilty of OMVWI, he has not argued
that the absence of evidence of his blood alcohol content makes the total
evidence insufficient to support a conviction for violating
§ 346.63(1)(a). We, therefore, do
not address this issue. Waushara
County v. Graf, 166 Wis.2d 442, 451, 480 N.W.2d 16, 19 (1992) (we
generally do not decide issues not raised on appeal).
Next,
Blatterman argues that because the deputy refused to permit him to take a urine
test, the result of his breath test should be suppressed. While we conclude that this assertion
incorrectly characterizes the testimony of the deputy, we also conclude that it
is irrelevant. Even if Blatterman's
factual assertion were correct, Blatterman was not convicted of driving with a
prohibited blood alcohol concentration.
Since he does not assert that the trial court could not have found him
guilty of OMVWI absent the result of the Intoxilyzer test, we reject this
argument.
Blatterman's
last contention is that he should be given a new trial because the trial court
denied him due process of law by restricting his cross- examination of
"the crucial prosecution witness."
The transcript shows that Blatterman is referring to his
cross-examination of the Intoxilyzer operator.[1] Blatterman has not complained that he was
forced to cut short his cross-examination of the deputy, and indeed, Blatterman
thoroughly cross-examined him. He ended
his cross-examination indicating that he had no further questions.
But,
as we have noted, Blatterman was not convicted of operating a motor vehicle
with a prohibited blood alcohol concentration.
The testimony which went to whether Blatterman was guilty of OMVWI was
given by the deputy, and the record shows that he had no further questions of the
deputy. The testimony given by the
Intoxilyzer operator was irrelevant to the statutory violation of which
Blatterman was convicted. We see no due
process violation in the limitation of irrelevant testimony. State v. Morgan, 195 Wis.2d
388, 432, 536 N.W.2d 425, 441-42 (Ct. App. 1995). And Blatterman has not argued that without the Intoxilyzer test,
the evidence was insufficient to convict him of OMVWI. Accordingly, we affirm.
By
the Court.—Judgment affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.