 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
[T] City of Sturgeon Bay v. Finnegan8/26/2003
. Mary Finnegan appeals a judgment of conviction for operating a motor vehicle while under the influence of an intoxicant and operating a motor vehicle with a prohibited alcohol concentration. During her jury trial, Finnegan moved for a mistrial on the grounds that the City of Sturgeon Bay improperly introduced testimony that (1) she was given her Miranda rights and then exercised her right to remain silent, and (2) the preliminary breath test did not obtain a result. The trial court denied the motion. Finnegan argues the trial court erred. We disagree and affirm the judgment.
BACKGROUND
. Finnegan was driving in Sturgeon Bay on May 25, 2002, when at approximately 2:35 a.m. officer Gregory Zager observed her stop where there was no stop sign. She then turned right and later failed to stop at a stop sign. Zager activated his emergency lights, which automatically turned on the video camera in his squad. Zager pulled Finnegan over. At trial, Zager testified that it took twenty seconds for Finnegan to roll down the window. When she did get the window down, Zager detected a strong odor of intoxicants. Finnegan admitted to drinking a couple of wines. Zager asked her to exit the vehicle to perform field sobriety tests. When exiting, Finnegan stumbled. Her speech was slurred and she leaned against the vehicle to keep her balance.
. The first test Zager administered was the horizontal gaze nystagmus test, which indicated intoxication. Next, Finnegan attempted the walk and turn test. Finnegan stated before the test that her balance was "whacked" because she had undergone chemotherapy. Zager testified he took that into account but continued with the test. Finnegan appeared confused and was unable to keep her balance during the instruction portion of the test. Zager did not ask Finnegan to complete the test, nor did he administer any other balance tests because he was concerned she would fall down and injure herself.
. Zager asked Finnegan to recite the alphabet, but she was unable to do so. Zager then attempted to administer a preliminary breath test. However, Finnegan appeared confused as to how to blow into the machine, and ultimately the machine did not register any result.
. Zager arrested Finnegan for operating while under the influence of an intoxicant and transported her to Door County Memorial Hospital for a blood draw. The result showed a blood alcohol level of .261%. Finnegan was charged with operating while under the influence of an intoxicant and operating with a prohibited alcohol concentration.
. At the jury trial, the City requested that the jury view the videotape of Finnegan attempting the preliminary breath test. Finnegan objected, arguing that allowing the jury to view the video would violate Wis. Stat. § 343.303, which prohibits admission of the results of a preliminary breath test. She also argued it was irrelevant and would be unfairly prejudicial. The court, however, allowed the jury to view the video. Additionally, Zager testified that he was unable to obtain any result from the test.
. Zager also testified that he used an alcohol influence report. The report included Miranda warnings, which Zager read to Finnegan, and a series of questions to be asked only if she waived her rights. Zager testified that Finnegan "had some difficulty understanding" her rights. As a result, Zager did not ask Finnegan any further questions. Finnegan objected to this line of questioning. She requested a mistrial based on evidence regarding the results of the preliminary breath test and the testimony about Finnegan's right to remain silent. The court denied the request. The jury convicted Finnegan on both charges and she appe
Page 1 2 3 Wisconsin DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|