COURT OF APPEALS DECISION DATED AND FILED April 16, 2009 David
R. Schanker 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. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT IV |
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State of Plaintiff-Respondent, v. William P. Meixelsperger, Defendant-Appellant. |
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APPEAL
from a judgment of the circuit court for
¶1 LUNDSTEN, J.[1] A jury found William Meixelsperger guilty of operating a motor vehicle while intoxicated as a third offense. Meixelsperger appeals the resulting judgment of conviction. He argues that the circuit court erred by admitting blood test evidence showing that he had a blood alcohol content above the legal limit. The person who drew his blood did not testify at trial. Meixelsperger challenges the admissibility of the blood test evidence under Wis. Stat. § 343.305(5)(b) and on constitutional grounds. For the reasons that follow, I affirm the circuit court’s judgment.
Statutory Challenge
¶2 Meixelsperger challenges the admissibility of the blood test result based on Wis. Stat. § 343.305(5)(b). That statute provides, in pertinent part, that a blood draw must be performed “by a physician, registered nurse, medical technologist, physician assistant or a person acting under the direction of a physician.” Meixelsperger argues that the State failed to establish who actually drew his blood and also that the person who drew his blood was a qualified person under the statute. I disagree.
¶3 The arresting officer testified that he observed Meixelsperger’s
blood being drawn in the
¶4 Meixelsperger apparently interprets Wis. Stat. § 343.305(5)(b) as also requiring Wuerker to appear in person and testify to the particular procedures she used to draw the blood, at least in situations like the one here, where the officer observing the blood draw was inexperienced in such matters. However, nothing in § 343.305(5)(b) imposes such a requirement for the admissibility of the blood test result. Meixelsperger of course remained free to attack the weight of that result by, for example, attempting to elicit evidence of some flaw in the procedure or arguing to the jury that the State’s failure to produce Wuerker cast doubt on the result.
Constitutional Challenge
¶5 For his constitutional argument, Meixelsperger relies on Crawford v. Washington, 541 U.S. 36 (2004).
The [Crawford] Court determined that the Confrontation Clause bars admission of an out-of-court-testimonial statement unless the declarant is unavailable and the defendant has had a prior opportunity to examine the declarant with respect to the statement….
The Court, unfortunately, did not spell out a comprehensive definition of what “testimonial” means…. The Court … noted that “testimony” is typically a “‘solemn declaration or affirmation made for the purpose of establishing or proving some fact.’”
State v. Jensen, 2007 WI
26, ¶¶15-16, 299
¶6 I decline to address the merits of Meixelsperger’s right-to-confront
argument because I agree with the State that Meixelsperger waived this argument
by failing to raise it in the circuit court.
See Village of Trempealeau v. Mikrut,
2004 WI 79, ¶15, 273
¶7 Moreover, Meixelsperger’s failure to respond to the State’s waiver argument provides an additional, independent ground for declining to reach the merits of his right-to-confront argument. See Fischer v. Wisconsin Patients Comp. Fund, 2002 WI App 192, ¶1 n.1, 256 Wis. 2d 848, 650 N.W.2d 75 (an argument asserted by the respondent and not disputed by the appellant in the reply brief is taken as admitted).
By the Court.—Judgment affirmed.
This opinion will not be published. Wis. Stat. Rule 809.23(1)(b)4.
[1] This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2)(f) (2007-08). All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.