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City of Milwaukee v. Bell7/11/2000
own as collateral estoppel) applies to a fact situation is a question of law that this court decides de novo. See id. In this case, the application of issue preclusion is complicated by the way in which the charges of operating while intoxicated and blood alcohol concentration are treated when they arise from the identical fact situation.
The statutes controlling OWI [operating a motor vehicle while intoxicated] and BAC [operating a motor vehicle with a prohibited blood alcohol concentration] charges make this situation unique. According to [Wis. Stat. § 346.63(1)(c)], a person may be charged with both OWI and operating with a prohibited BAC for acts arising out of the same occurrence. If both violations are charged, the offenses are joined. If the defendant "is found guilty of both and [operating with a prohibited BAC] for acts arising out of the same incident or occurrence, there shall be a single conviction for purposes of sentencing." In other words, the defendant is to be sentenced on one of the charges, and the other charge is to be dismissed. Town of Menasha v. Bastian, 178 Wis. 2d 191, 195, 503 N.W.2d 382 (Ct. App. 1993) (citations omitted). Here, both of Bell's charges were heard at the same time after which the trial court found Bell "not guilty" of the OWI charge, but "guilty" of the BAC charge. Because he was found "not guilty" of the OWI offense, Bell assumes that the trial court must have made factual determinations concerning his impairment which favor him. However, even if true, although the record is devoid of any findings of the municipal judge to support these allegations, Bell's acquittal does not qualify for issue preclusion treatment because Bell must establish that this issue of fact was actually litigated and determined by a valid and final judgment. See Hlavinka v. Blunt Ellis, and Loewi, Inc., 174 Wis. 2d 381, 396, 497 N.W.2d 756 (Ct. App. 1993) (quoting Restatement (Second) of Judgments § 27). In other words, Bell is required to prove that the trial court made factual findings that he was not impaired. Bell cannot establish this burden because the testimony that led to his conviction of the BAC offense is the identical testimony that led to his acquittal of the OWI charge. Thus, the doctrine of issue preclusion cannot come into play under this unusual procedure where two separate charges are tried together but the trial court can only sentence a violator to one of them because the issue was not "actually" litigated earlier.
. Moreover, the testimony of the officers relating to Bell's conduct and appearance at the time of the stop, during the field test and during the testing for blood alcohol, is relevant to both charges, not just the charge of OWI, as Bell contends. Bell concedes that his blood alcohol concentration at the time of the test was over that proscribed by law. His defense was that, even though his test results were in the prohibited level, he submitted proof that his blood alcohol level at the time of the offense was within a permissible range. Thus, he argued that he was "not guilty" of the charge of BAC and that the City should be prohibited from submitting any evidence except his test results. Bell is mistaken.
. The City is entitled to present circumstantial evidence that refutes his contention. As the trial court noted, the evidence concerning Bell's field sobriety test performance and other observations of his demeanor and conduct are relevant evidence as to whether Bell's blood alcohol content exceeded that allowable. This is so because if Bell was showing signs of intoxication, then it was more probable that his blood alcohol content was elevated at the time of his arrest. Thus, the trial court did not err in refusing to grant Bell's p
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