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State v. Bernier4/12/2000
Cornelia G. Clark Clerk, Court of Appeals of Wisconsin
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.
A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
APPEAL from a judgment and an order of the circuit court for Waukesha County: ROBERT G. MAWDSLEY, Judge. Affirmed.
.
Thomas G. Bernier appeals from a judgment of conviction for operating a motor vehicle with a prohibited alcohol concentration (PAC) and from an order denying his post-conviction motion for a new trial. On appeal, Bernier complains that the technician who drew his blood sample was not produced as a witness at the jury trial. We hold that the absence of the technician as a witness: (1) did not violate the statutory requirements of Wis. Stat. § 343.305(5)(b), which covers the administration of tests for intoxication; (2) did not break the chain of custody for the blood sample evidence; and (3) did not violate Bernier's confrontation rights.
. On a related theme, Bernier also complains that the technician was identified on the blood/urine analysis form only by an identification number, not by his or her name. We reject this argument because Bernier never sought the technician's personal identity by discovery or other means.
. We affirm the judgment and post-conviction order.
FACTS
. On May 7, 1998, Bernier's neighbors called the police after they observed a car that had just sideswiped a parked van pull into Bernier's garage. The ensuing investigation led the police to determine that Bernier was the driver of the car and to suspect that he was intoxicated. Bernier was arrested and transported to Waukesha Memorial Hospital for further investigation and processing under the implied consent law.
. At the hospital, City of Waukesha Police Officer Jeffrey Perlewitz advised Bernier pursuant to the Informing the Accused form. In response, Bernier consented to having his blood drawn for a chemical test.
. In accordance with an agreement between the city and the hospital, a medical technician from the hospital drew Bernier's blood sample in Perlewitz's presence. Using a sealed kit provided by the State, the technician drew two tubes of Bernier's blood and handed them over to Perlewitz. The technician then executed the Blood/Urine Analysis form, inserting the date, time, his or her identification number and circling the title "Technologist" as the person who drew the sample. Perlewitz then processed the samples as evidence and mailed them to the state laboratory in Madison for analysis. The test result revealed a blood alcohol concentration in excess of the legal limit.
. Bernier was charged with operating a motor vehicle while intoxicated (OWI), contrary to Wis. Stat. § 346.63(1)(a), and operating a motor vehicle with a PAC contrary to Wis. Stat. § 346.63(1)(b). Both were charged as fifth offenses.
. A jury trial was conducted on January 12, 1999. Because the technician did not testify, Bernier objected to the admissibility of the Blood/Urine Analysis. He argued that the State had failed to prove that the technician was statutorily qualified to withdraw blood. The trial court disagreed, ruling that the objection went to the weight of the evidence, not its admissibility. Ultimately, the jury found Bernier guilty of both OWI and operating with a PAC. The court entered a judgment of conviction on the operating with a PAC charge and dismissed the OWI charge.
. Post-conviction, Berni
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