State v. Steven L. Sternitzky, 2019AP2185-CR, District 4, 11/5/20 (one-judge decision; ineligible for publication); case activity (including briefs)

Sternitzky argues he was arrested for OWI without probable cause and that his trial on the charge was marred by the judge’s instruction to the jury regarding the presumption of intoxication and automatic admissibility of chemical test results. The court of appeals rejects both arguments.

Arrest: Sternitzky’s main argument about his arrest is about the use of the results the preliminary breath test (0.134) in gauging probable cause. He asserts the PBT results shouldn’t be used because, instead of “requesting” that Sternitzky provide a breath sample and getting Sternitzky’s consent, the officer directed him to do so. The circuit court’s conclusion that the officer did make a request and that Sternitzky consented isn’t clearly erroneous, so that’s the end of that argument. And there was no need to use the PBT results to establish probable cause in any event, given all the other facts known to the officer: Sternitzky’s admission to consuming six glasses of wine over the course of the evening; his initial evasiveness regarding how much alcohol he had consumed; the odor of intoxicants on his person, which was noticeable despite the interference from cigarette smoke; his prior OWI convictions; his performance on the field sobriety tests; his clumsiness in dropping his cigarette; and the time of day of the stop (approximately 1:00 a.m.). (¶¶2-6, 14-22).

Jury Instruction: The circuit court instructed the jury using Wis. J.I.—Criminal 2669, which tells the jury that the results of a blood sample taken within 3 hours of driving may be used to find intoxication, a prohibited alcohol concentration, or both. Sternitzky argues this instruction was improper in the absence of any evidence at trial that the he was read the “Informing the Accused” form. (There’s no dispute he was read the form; it’s just that the state didn’t put in evidence that happened.) Sternitzky supported this argument by citing State v. Zielke, 137 Wis. 2d 39, 51, 403 N.W.2d 427 (1987) (failure to follow the procedures of the implied consent law “results in the loss of certain evidentiary benefits,” including the “automatic admissibility of results”), and State v. Piddington, 2001 WI 24, ¶67, 241 Wis. 2d 754, 623 N.W.2d 528 (Sykes, J., concurring) (noncompliance with the implied consent law may result in the State “los[ing] the evidentiary benefits of automatic admissibility and the presumption of intoxication….”). Neither Zielke nor Piddington support the premise that, even when a defendant is read the Informing the Accused form, the State is not entitled to the automatic admissibility and presumption of intoxication provisions of the implied consent law or to Wis. J.I.—Criminal 2669 unless the State also presents evidence to the jury that the defendant was read the form. (¶¶24-28).

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