|
COURT OF
APPEALS DECISION DATED AND
RELEASED April
4, 1996 |
NOTICE |
|
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. 95-1242
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
COUNTY
OF CRAWFORD,
Plaintiff-Respondent,
v.
JEFFERY
A. WELSH,
Defendant-Appellant.
APPEAL
from an order of the circuit court for Crawford County: MICHAEL
KIRCHMAN, Judge. Affirmed.
DYKMAN,
J. This is a single-judge appeal decided pursuant to
§ 752.31(2)(c), Stats. Jeffery A. Welsh appeals from an order
convicting him of one count of operating a motor vehicle while under the
influence of an intoxicant (OMVWI), contrary to § 346.63(1)(a), Stats., and one count of operating a
motor vehicle with a prohibited blood alcohol concentration (BAC), contrary to
§ 346.63(1)(b). Welsh asserts that
the results of his blood alcohol concentration test must be suppressed because
the results were not timely revealed to him.
We conclude that we need not reach this issue because Welsh's conviction
for OMVWI is adequately supported by the record and he has not argued that
without the evidence of his blood alcohol concentration, the remaining evidence
was insufficient to support this conviction.
Accordingly, we affirm.
The
following facts are taken from Deputy Sheriff Tim Moran's incident report. Sometime between midnight and 1:30 a.m. on
January 25, 1995, Deputy Moran was traveling south between Gays Mills and
Bell Center when he was passed by a vehicle travelling north at eighty-six
miles per hour. He turned around and
gave chase. As he was approaching Gays
Mills, he came upon a truck flipped over on the driver's side. The driver, Jeffery A. Welsh, was
trying to get out of the truck. Deputy
Moran noticed Welsh's bloodshot eyes and detected an odor of intoxicants on his
breath. Welsh did not complain of
injuries. Deputy Moran noticed that
Welsh was unsteady on his feet, and asked him to do a few sobriety tests. Welsh agreed. Deputy Moran observed that Welsh did the tests poorly, and
arrested him for OMVWI. Welsh told
Deputy Moran that his leg was hurting, so Deputy Moran took him to a hospital where
a blood sample was drawn.
The
blood sample was tested the following day and revealed a blood alcohol
concentration of .216%. Welsh moved to
suppress the results of the test, which the trial court denied. He asserts that because he was not informed
of the results of the blood alcohol test until long after the incident, he was
deprived of the opportunity to have a second test guaranteed to him by
§ 343.305(4)(d), Stats.[1] He argues that since he has this right, he
must be given an effective means to challenge false or inaccurate results of
blood alcohol testing obtained by the police.
He relies upon Village of Oregon v. Bryant, 188 Wis.2d
680, 691, 524 N.W.2d 635, 639 (1994), where the court said:
It is after the accused has been told and knows that he
has tested in excess of a permitted BAC that he has the opportunity to have
another test. Thus, at this
post-initial testing juncture, the accused has been fully informed and knows
that he will be administratively suspended because he has failed the first
test. There is no additional jeopardy
threatened by asking for another test.
The accused has absolutely nothing to lose.
Thus, according to Welsh, because he cannot immediately
know the results of a blood test, he is denied his right to a second test. This, he claims, is a violation of due
process of law.
But
we need not consider whether the trial court should have suppressed the results
of Welsh's blood alcohol concentration test because Welsh was convicted of both
OMVWI and BAC. Even if the blood
alcohol concentration test is suppressed, the OMVWI conviction remains. Though Welsh's blood alcohol content as
revealed by the blood alcohol test is relevant to determine whether he is
guilty of OMVWI, he has not argued that the absence of evidence of his blood
alcohol content makes the total remaining evidence insufficient to support a
conviction for OMVWI. We generally do
not decide issues not raised on appeal.
Waushara County v. Graff, 166 Wis.2d 442, 451, 480 N.W.2d
16, 19, cert. denied, 506 U.S. 894 (1992). We, therefore, do not address this issue.
By
the Court.—Order affirmed.
Not
recommended for publication in the official reports. See Rule
809.23(1)(b)4, Stats.