County of Rock v. Gilmore

679 N.W.2d 926

• Court: Court of Appeals of Wisconsin
• Decided: March 11, 2004
• Docket: 03-1532
• Status: Published

Opinion

County of Rock, Plaintiff-Respondent,
v.
Gibson T. Gilmore, Defendant-Appellant.

No. 03-1532.

Court of Appeals of Wisconsin.

Opinion Filed: March 11, 2004.

¶1. VERGERONT, J.^[1]

Gibson Gilmore appeals a judgment of conviction for operating a motor vehicle while intoxicated, first offense, in violation of Wis. Stat. § 346.63(1)(a). Gilmore contends the trial court erred in denying his motion to exclude from the evidence the results of the Intoximeter EC/IR test of his breath. He asserts the approval of the instrument by the chief of the chemical test section of the Department of Transportation involved standards that should have been, but were not, promulgated as an administrative rule under the rulemaking procedures established in Wis. Stat. ch. 227, and therefore the approval was invalid. We have rejected the identical argument in County of Dane v. Winsand, No. 03-2004 (WI App Mar. 11, 2004), in which the defendant filed a brief identical to that filed by Gilmore, relying on the same testimony of the section chief as that relied on by Gilmore. We attach our decision in Winsand and incorporate paragraphs 3 and 6-13 of that opinion into this opinion. Based on the reasoning and conclusions in these paragraphs, we affirm the judgment of conviction.

By the Court. — Judgment affirmed.

NOTES

[1] This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2)(c) (2001-02). All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.