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City of Milwaukee v. Bell7/11/2000
APPEAL from a judgment of the circuit court for Milwaukee County: MARY M. KUHNMUENCH, Judge. Affirmed.
Michael A. Bell appeals the judgment convicting him of the municipal charge of operating a motor vehicle with a prohibited blood alcohol concentration, contrary to Wis. Stat. § 346.63(1)(b). He argues that the trial court erred by: (1) refusing to take judicial notice of his acquittal of the companion charge of operating a motor vehicle while intoxicated; (2) denying his motion that the City be prohibited from arguing that Bell was impaired at the time of the offense; (3) instructing the jury that it could infer that Bell had a prohibited alcohol content when he was driving because, at the time of his intoxilyzer test, his alcohol content was over the permissible limit; and (4) allowing the City to elicit testimony that he failed the field sobriety tests. This court affirms.
I. Background.
. On September 11, 1996, Bell and his roommate went to a bar where Bell consumed five alcoholic drinks within the span of approximately two hours. While driving home, he was stopped after a City of Milwaukee police officer claimed he saw Bell driving erratically. After Bell failed the field sobriety tests, he was arrested at approximately 9:20 p.m. He was then transported to the police station and, at approximately 10:12 p.m., he was given a test to measure his blood alcohol level. His test result registered over the permissible limit. As a result, he was given two citations, one for operating a motor vehicle while intoxicated, and another, for operating a motor vehicle with a prohibited alcohol concentration.
. Bell contested the charges. He was first tried in municipal court where the judge found Bell "guilty" of operating with a prohibited alcohol concentration, but "not guilty" of operating while intoxicated. Bell then petitioned the circuit court for a de novo review of the charge for which he was convicted. The City did not appeal the operating while intoxicated charge.
. In the circuit court, Bell brought a pre-trial motion seeking to suppress any testimony related to his performance on the field sobriety tests. He argued that any relevance of this testimony was outweighed by unfair prejudice. The motion was denied. Prior to the trial, Bell also requested that the trial court take judicial notice of the municipal judge's finding of "not guilty" of the other charge, and that the trial court tell the jury of the verdict. He also asked the trial court to rule that the City was barred from putting in evidence of his impairment, and that the City be prohibited from arguing that he was impaired on the night in question. These requests were also denied. At trial, besides testifying in his own defense, Bell called an expert witness, Robert Eberhardt, a board certified forensic toxicologist. Eberhardt testified that after applying the "blood alcohol curve's" scientific principles to the underlying facts, in his expert opinion, although Bell had a prohibited blood alcohol content at the time of the test, his alcohol content at the time of his arrest was below the legal limit. Nevertheless, Bell was convicted.
II. Analysis.
. Bell first contests the trial court's refusal to take judicial notice of his acquittal of the accompanying charge of operating a motor vehicle while intoxicated. He argues that his request was made under Wis. Stat. § 902.01(4) and, thus, the trial court had no choice but to take judicial notice of his acquittal in the municipal court. Bell is wrong.
. Wisconsin Stat. § 902.01 governs the circumstances and the procedure to be used when a party requests that the trial court take judicial notice. Sectio
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