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State v. Krueger12/15/1999
Marilyn L. Graves Clerk, Court of Appeals of Wisconsin
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 § 808.10 and Rule 809.62, Stats.
APPEAL from an order of the circuit court for Winnebago County: WILLIAM H. CARVER, Judge. Affirmed.
Jerry W. Krueger appeals from a § 343.305, Stats., order revoking his driver's privileges for refusing to submit to a blood alcohol test for intoxication. Krueger contends that he established by a preponderance of the evidence that he was physically unable to submit to a test of his breath due to a physical disability as provided under § 343.305(9)(a)5.c. We conclude that the trial court did not err in finding that Krueger failed to meet his burden that he was physically unable to take the chemical test and affirm the revocation order.
. Officer Eric Stenson of the City of Oshkosh Police Department observed Krueger operating his vehicle in an erratic manner on March 20, 1999. Stenson stopped the vehicle and asked Krueger if he had any reason for the erratic driving. Krueger complained about a vehicle cutting him off and that he was "pissed off." Stenson smelled the odor of alcohol coming from the vehicle and noticed that Krueger had slurred speech. Krueger was not able to satisfactorily perform the heel-to-toe test, told Stenson "I can't do this `fucking' heel to toe test" and became agitated, argumentative and uncooperative.
. After Krueger complained about leg pain and a number of leg operations, Stenson requested that Krueger recite the alphabet from A to Z and perform the finger-to-nose test. Krueger failed these tests. Krueger was asked to provide a preliminary breath test (PBT) sample prior to his arrest. According to Stenson, Krueger did not attempt to generate any breath during the PBT; he "puffed his cheeks out and that was it."
. After Krueger was placed under arrest, he told Stenson that he "needed some medication because he was going to flip out on us" and that the medication was in his car. Stenson testified that Krueger did not indicate what type of medication. Krueger was transported to the Oshkosh police station where he was read the required Informing the Accused form and was asked to submit to a breath alcohol test. Krueger refused to consent to a test and was presented with a notice of intent to revoke his operator's license pursuant to § 343.305(9)(a), Stats. Krueger timely requested a § 343.305(9) refusal hearing after receiving the notice of intent to revoke.
. At the refusal hearing, Krueger testified that he suffered from panic disorder or panic attacks. He stated that he felt the symptoms of a panic attack coming on at the scene of the OWI arrest and described the feeling as " hortness of breath, just feel hyper, like you want to move and can't sit still and hard to concentrate; get somewhat disorientated." Krueger testified that he blew as hard as he could to comply with the PBT request. He stated that at the scene of the stop, "I requested from [Stenson] if I could please take my medication, and I explained to him that I had panic disorder." Krueger testified that Stenson searched and locked his vehicle and told him, "I have your medication," but "you're not getting [the medication] until you're arrested and let go." Krueger concedes that he did not provide a breath test sample but stated that he told Stenson that " f he would let me take my medication, in twenty minutes I would be fine, which he indicated that, once again, don't ask for your medication
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