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State v. Edwards10/19/2000
s that Bohling supports his position in this case because the supreme court concluded that a delay in taking a blood sample may imperil the evidence of blood concentration. He claims that "it is obvious that breath testing is vastly quicker than blood sampling." The problem with these arguments is that there is no factual basis in the record to support them. We do not know, for instance, whether Edwards requested a breath test, or was offered one and refused it, or whether the police could have obtained a breath test more quickly than the blood sample.
. Edwards claims, however, that the lack of a proper evidentiary record should not be held against him because the motion he filed requested an evidentiary hearing. We disagree. During argument on Edward's motion, the prosecutor told the court, "I think we can dispose of this motion on a legal basis without getting anywhere on the evidence. I don't think there is any dispute that the officers requested that Mr. Edwards submit to a blood draw and ultimately that blood that was taken was tested." Edwards's counsel did not disagree with the prosecutor's statement, and made no objection to the court proceeding to decide the motion without an evidentiary hearing.
CONCLUSION
. Because we conclude that the disposition of this appeal is controlled by our holding in State v. Thorstad, we affirm the appealed judgment.
By the Court. -- Judgment affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.
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