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[T] State v. Rupp4/3/2003
ly, Rupp challenges the constitutionality of Wisconsin's implied consent law, Wis. Stat. § 343.305(2), and thereby, his conviction.
. In order to sustain its burden of proof for the OMVWI conviction, the prosecution was required to establish that (1) Rupp was operating a vehicle on the highway and (2) Rupp 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 tantamount to a finding of guilt for OMVWI. See id.
. On appeal for his conviction of OMVWI, Rupp 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 of facts used by the circuit court is insufficient to support his conviction of OMVWI, without the results of the blood test. Therefore, the arguments that Rupp presents in this appeal could not result in a reversal of his judgment of conviction for OMVWI, even if we were to accept his views as accurate statements of the law, which we do not.
. Accordingly, although the State argues that Rupp's conviction should be affirmed under the holdings in State v. Krajewski, 2002 WI 97, 255 Wis. 2d 98, 648 N.W.2d 385, cert. denied, 123 S. Ct. 704 (Dec. 16, 2002) and State v. Wintlend, 2002 WI App 314, ___ Wis. 2d ___, 655 N.W.2d 745, review denied, 2003 WI 16, 657 N.W.2d 708 (Jan. 14, 2003) (No. 02-0965-CR), 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 Rupp's violation of Wis. Stat. § 346.63(1)(a), we do not analyze the applicability of Krawjewski, Wintlend, or any other case relating to the Fourth Amendment issues raised by Rupp. Instead, we affirm the judgment of the circuit court without further discussion.
By the Court. -- Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. § 809.23(1)(b)4.
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