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State v. Severson11/27/2002
. Douglas D. Severson appeals a judgment of conviction for operating a motor vehicle while intoxicated (OMVWI), contrary to Wis. Stat. § 346.63(1)(a), second offense. Because we conclude that there is nothing in the arguments presented in this appeal that bears on the circuit court's judgment of conviction for a violation of Wis. Stat. § 346.63(1)(a), we affirm the judgment of the circuit court.
BACKGROUND
. Severson's conviction arose from the following incident. On August 19, 2000, at approximately 11:44 p.m., patrol officer Andrew Rau stopped Severson for speeding. Officer Rau approached Severson and asked to see his driver's license. Rau noticed that Severson's speech was slow and slurred, that he had a difficult time retrieving his license, that the car smelled of intoxicants and that Severson's eyes were glassy and bloodshot. Rau asked Severson if he had been drinking and Severson answered that he had been out with some friends. Rau then asked Severson to exit his car to perform field sobriety tests.
. Rau first conducted the horizontal gaze nystagmus test. Next, Rau instructed Severson to complete the walk and turn test and then to complete the stand and count test. After Severson failed to successfully complete the three tests, Rau asked him to submit a preliminary breath test that yielded an alcohol level of .218.
. Rau arrested Severson for OMVWI and transported him to Divine Savior Hospital for a blood draw. Severson was read the Informing the Accused Form and asked to submit a sample of his blood for testing. Severson agreed and the blood draw produced a blood alcohol level of .219, a prohibited alcohol concentration (PAC) for a driver of a motor vehicle under Wisconsin law.
. Severson moved to suppress the results of the blood test. The court denied his motion, and he pled no contest based on a stipulation of facts. He was convicted of OMVWI.
DISCUSSION
Standard of Review.
. The facts relevant to Severson's conviction were stipulated. Therefore, whether those facts and the legal arguments presented on appeal require reversal is a question of law that we review de novo. See Monroe County v. Kruse, 76 Wis. 2d 126, 128, 250 N.W.2d 375, 376 (1977).
Conviction.
. Severson appeals the judgment of conviction for OMVWI, a violation of Wis. Stat. § 346.63(1)(a). Severson alleges that the conviction is invalid because the blood draw violated his Fourth Amendment protections against unreasonable searches and seizures. Although Severson consented to the blood draw, he now argues that his consent was coerced by the threatened sanction of a loss of driving privileges. Stated differently, Severson challenges the constitutional validity of Wis. Stat. § 343.305 and thereby, his conviction.
. In order to sustain its burden of proof for the OMVWI, the prosecution was required to establish that (1) Severson was operating a vehicle on the highway and (2) Severson was under the influence of intoxicants. Kruse, 76 Wis. 2d at 131, 250 N.W.2d at 377. The supreme court has recognized that a driver may have a PAC according to the terms of Wis. Stat. § 346.63(1)(b) but not be under the influence of an intoxicant. State v. Bohacheff, 114 Wis. 2d 402, 415-16, 338 N.W.2d 466, 473 (1983). Therefore, a finding of guilt for driving with a PAC is not necessarily intertwined with a finding of guilt for OMVWI. See id.
. On appeal for his conviction of OMVWI, Severson does not argue that he would not have been convicted of OMVWI if the suppression motion relating to the blood test had been granted, nor does he argue that the evidence contained within the stipulation
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