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State v. Hughes12/21/2000
APPEAL from a judgment of the circuit court for Iowa County: WILLIAM D. DYKE, Judge. Reversed and cause remanded with directions.
. Francis Hughes appeals a judgment convicting him of operating a motor vehicle while under the influence of an intoxicant (OMVWI) and with a prohibited alcohol concentration (PAC), contrary to Wis. Stat. § 346.63(1)(a) and (b). He claims the trial court erred in failing to obtain a personal waiver from him of his right to a jury trial. We agree. We also conclude that a new trial will not violate the constitutional prohibition against double jeopardy. Accordingly, we reverse the conviction and remand the case for a new trial.
BACKGROUND
. Hughes was involved in a two-vehicle motor vehicle accident at approximately 6:00 p.m. on a July evening. Both drivers were injured as a result of the accident, and both were taken to a hospital for treatment. An Iowa County Sheriff's Deputy investigating the accident spoke with the other driver's father who said that Hughes had been drinking. The officer also noted a strong odor of intoxicants emanating from Hughes' vehicle. The officer went to the hospital, and asked Hughes if he had been drinking. Hughes said that he had one beer after work, and that he had left work at 12:30 p.m. The officer arrested Hughes for OMVWI. The other driver was cited for and was later convicted of crossing the centerline.
. Hughes consented to an evidentiary test of his blood alcohol concentration, but due to his need for medical treatment, the blood sample was not drawn until just over three hours after the accident. A diagnostic blood test was performed by hospital personnel on blood drawn from Hughes approximately one hour after the accident, and the State obtained the result of the diagnostic test by subpoena. Hughes moved to suppress the results of both blood tests, but the court denied his motions.
. The case was scheduled for a jury trial, but in correspondence to the court and again in open court, the prosecutor and defense counsel agreed to a court trial on stipulated facts. Hughes neither signed the correspondence nor personally commented in court regarding the waiver of his right to a jury trial. The parties agreed that if Hughes were convicted, the State would recommend the minimum statutory penalties and would not object to a stay pending appeal. If the case were later remanded for a new trial, the State further agreed not to oppose Hughes's withdrawal of his waiver of a jury trial.
. During the bench trial on stipulated facts, the State introduced the results of both the "legal" and diagnostic blood tests, together with a supporting affidavit from a chemist at the state hygiene lab evaluating the test results. The trial court convicted Hughes of OMVWI and PAC, and Hughes appeals the judgment of conviction.
ANALYSIS
. Hughes first argues that he is entitled to a new trial because he did not personally waive his right to a jury trial. Although conceding that Hughes "did not himself sign the writing waiving the jury trial and did not make a statement himself in open court waiving that right," the State argues that Hughes in fact knowingly waived his right to a jury trial under the "totality of the circumstances." Because the law requires that a defendant personally waive the right to a jury trial, we reject the State's argument.
. Wisconsin Stat. § 972.02(1) addresses the waiver of the right to jury trial. The statute provides that criminal cases be tried by a jury, "unless the defendant waives a jury in writing or by statement in open court or under s. 967.08(2)(b) [proceedings conducted by telephone], on the record, with the approv
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