 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
[T] City of Sturgeon Bay v. Finnegan8/26/2003
als.
DISCUSSION
. Finnegan argues the trial court erred by not granting a mistrial. The decision whether to grant a motion for a mistrial lies within the sound discretion of the trial court. Haskins v. State, 97 Wis. 2d 408, 419, 294 N.W.2d 25 (1980). The trial court must determine, in light of the whole proceeding, whether the claimed error was sufficiently prejudicial to warrant a new trial. State v. Grady, 93 Wis. 2d 1, 13, 286 N.W.2d 607 (Ct. App. 1979). We will reverse the denial of a motion for mistrial only on a clear showing of an erroneous use of discretion by the trial court. Johnson v. State, 75 Wis. 2d 344, 365, 249 N.W.2d 593 (1977).
. Finnegan first argues she is entitled to a mistrial because the City improperly informed the jury that Finnegan exercised her right to remain silent. She maintains this violated her due process rights. Whether Finnegan's constitutional rights have been violated presents a question of law that we review independently. See Door County DHFS v. Scott S., 230 Wis. 2d 460, 465, 602 N.W.2d 167 (Ct. App. 1999).
. The Fifth Amendment requires that no person may be compelled in any criminal case to be a witness against himself or herself. Village of Menomonee Falls v. Kunz, 126 Wis. 2d 143, 147-48, 376 N.W.2d 359 (Ct. App. 1985). However, the Fifth Amendment was not designed to protect a defendant from the jury's consideration of his or her silence in a non-criminal proceeding. Nevertheless, Finnegan argues it is irrelevant that this is a civil rather than a criminal case. She admits that Miranda warnings were not required because this is a civil offense, but once the warnings were in fact given, she had the right to assert those rights and not have her silence used against her at trial. She cites no authority for this proposition.
. To begin with, the record does not support Finnegan's premise that she invoked her Miranda rights. In fact, she neither invoked nor waived those rights. Rather, Zager testified Finnegan had difficulty understanding her rights. Zager stopped questioning because of Finnegan's confusion, not because she invoked her rights. This is hardly a violation of Miranda or a prohibited comment on Finnegan's silence. Therefore, even if Miranda applied to this civil case, Finnegan's rights were not violated and the court did not err by denying her request for a mistrial on this issue.
. Finnegan next argues she is entitled to a mistrial because the City violated Wis. Stat. § 343.303 when it introduced evidence that the preliminary breath test did not obtain a result. This issue involves statutory interpretation, which is a question of law we decided independently. State v. Isaac J.R., 220 Wis. 2d 251, 255, 582 N.W.2d 476 (Ct. App. 1998). However, the trial court's factual findings must be upheld unless they are clearly erroneous. Wis. Stat. § 805.17(2).
. Wisconsin Stat. § 343.303 states: "The result of the preliminary breath screening test shall not be admissible in any action or proceeding except to show probable cause for an arrest, if the arrest is challenged, or to prove that a chemical test was properly required or requested of a person under s. 343.305(3)." Here, the record shows the preliminary breath test did not obtain a result. However, Finnegan argues that "the lack of a result is a result" and therefore the City violated § 343.303 by introducing evidence that there was no result.
. We do not agree that the lack of a result is a result. Rather, lack of a result is in fact not a result at all. If it was, Finnegan could have argued that there was no alcohol in her system because the machine did not detect any. She made no such argument.
Page 1 2 3 Wisconsin DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|