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[T] City of Sturgeon Bay v. Finnegan8/26/2003
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. Furthermore, even if "the lack of a result is a result" Finnegan was not prejudiced. Finnegan was convicted of both operating while under the influence of an intoxicant and operating with a prohibited alcohol concentration. Finnegan's argument about the preliminary breath test applies only to the operating while under the influence charge. The argument has no bearing on the conviction for operating with a prohibited alcohol concentration.
. Wisconsin Stat. § 346.63(1)(c) states that a person may be charged with both operating while under the influence of an intoxicant and operating with a prohibited alcohol concentration. However, there is a single conviction for purposes of sentencing. Town of Menasha v. Bastian, 178 Wis. 2d 191, 195, 503 N.W.2d 382 (Ct. App. 1993). Finnegan does not dispute that she was driving and that the blood test revealed a blood alcohol content of .261%. The record therefore supports the jury's finding of guilt for operating with a prohibited alcohol concentration, and Finnegan's argument about the preliminary breath test does not affect her conviction on this charge.
By the Court. -- Judgment affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.
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