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COURT OF APPEALS DECISION DATED AND RELEASED JANUARY 24, 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. 95-2279-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
CARAN K. ZASTROW,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Sheboygan County:
JOHN B. MURPHY, Judge. Affirmed.
ANDERSON, P.J. Caran
K. Zastrow maintains that the trial court erred when it found that her demand
for a breath test was not a request for an alternative chemical test. We affirm because the factual findings of
the trial court are not clearly erroneous.
Zastrow was taken to
Sheboygan Memorial Hospital’s emergency room after an accident in which she
suffered head injuries. After she was
x-rayed, State Trooper Roger Jones entered the treatment room, gave her a
citation for operating while intoxicated and read her the Informing the Accused
form required by the implied consent law.
Jones then asked Zastrow if “she would submit to an evidentiary chemical
test of her blood,” and she responded that before she would submit to the blood
test she wanted to have a breathalyzer test.
Jones explained to Zastrow that usually a breath test is the primary
test but because she had suffered head injuries in an accident, his department’s
policy was to designate a blood test as the primary test.
After Zastrow again
requested the breath test, Jones began to explain “the refusal system” to her
and she responded that she was not refusing but wanted to take the breath
test. In the course of again explaining
that the blood test was the primary test because of the head injuries she had
suffered, Jones told Zastrow that while she did have the option of taking a
secondary test, “in this case it could
not be breath because of the injuries that she had sustained.”[1] After this second complete explanation,
Zastrow submitted to a blood test.
Jones then asked Zastrow if she had any questions, she answered no, and
Jones left the hospital.
Zastrow brought a motion
to suppress the results of the blood test challenging the failure of Jones to
fulfill her repeated requests for a breath test. After an evidentiary hearing, the trial court denied her motion
finding that “she didn’t request any additional tests, alternative by the
agency or by anyone else. That her
request was simply one straightforward, that she wanted not the blood test but
she wanted the breath test instead. She
didn’t get that, she didn’t request an alternative test.”
On appeal, Zastrow
insists that this case is closely on point with the facts of State v.
Renard, 123 Wis.2d 458, 367 N.W.2d 237 (Ct. App. 1985). She argues that the trial court erred in not
holding, as we did in Renard, that the requested additional test
was mandatory after she submitted to the blood test and in not strictly
enforcing her right to the test she requested.
Zastrow’s attempt to fit
the facts of this case within the decision in Renard overlooks
the standard of review that is employed.
Under § 805.17(2), Stats.,
a trial court’s findings of fact will not be set aside unless they are clearly
erroneous. See State v.
Coerper, 192 Wis.2d 566, 571, 531 N.W.2d 614, 617 (Ct. App. 1995). In Renard, the trial court
found that “Renard requested a breathalyzer test in addition to the blood
test,” and we held that the finding was “not contrary to the great weight and
clear preponderance of the evidence.”[2] Renard, 123 Wis.2d at 460, 367
N.W.2d at 238. However, in this case,
the trial court found that Zastrow “didn’t request any additional tests” and we
must affirm this finding if it is not clearly erroneous.
Our own independent
review of the record confirms the correctness of the trial court’s
findings. The trial court determined
that the reason Zastrow asked for the breath test, instead of the blood test,
was that “she thought if she took this breath test the results would come back
instantaneously ¼ that
Jones would see the results, be convinced that there was no level of
intoxication and be dissuaded from writing the ticket.” This conclusion emanates from Zastrow’s
testimony that from her experience of having lived in Texas and being in the
medical field that if she “would have a breath test that it would show that I
was not under the influence of alcohol, ¼ whereas with the blood test I know that takes a couple
of days ¼.”
We reach the same
conclusion the trial court reached.
Zastrow's request was for a primary test because she knew that if the
results were below the legal blood-alcohol level she would not be arrested and
that it was only with the breath test that there would be immediate
results. Therefore, the trial court’s
finding that Zastrow did not request the breath test as the alternate test is
not clearly erroneous and we affirm.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.
[1] Inexplicably, Zastrow does not challenge the correctness of Jones’s advice that the alternate test his agency would give would be another blood test. Jones testified that his agency does not take urine tests and that breath tests are not an option when there is an accident. On the surface this advice conflicts with § 343.305(2), Stats., which states that a “law enforcement agency ¼ shall be prepared to administer ¼ 2 of the 3 tests ¼ and may designate which of the tests shall be administered first.” These tests include breath, blood or urine. Section 343.305(3)(a).