State v. Draize

276 N.W.2d 784, 88 Wis. 2d 445, 1979 Wisc. LEXIS 1921
CourtWisconsin Supreme Court
DecidedMarch 27, 1979
Docket76-523-CR
StatusPublished
Cited by40 cases

This text of 276 N.W.2d 784 (State v. Draize) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Draize, 276 N.W.2d 784, 88 Wis. 2d 445, 1979 Wisc. LEXIS 1921 (Wis. 1979).

Opinions

WILLIAM G. CALLOW, J.

This is an appeal from a circuit court order affirming a county court judgment of conviction for driving under the influence of an intoxicant, contrary to sec. 346.63(1) (a), Stats. At issue is whether the trial court committed prejudicial error by (1) receiving in evidence a state trooper’s testimony that the defendant told him he had taken a breathalyzer test before; and (2) allowing the prosecutor, in rebuttal argument, to ask the jurors to place themselves in the shoes of the arresting officer and to tell the defendant through their verdict that “[t]his is not the kind of activity you engage in.”

On November 1, 1975, the defendant was arrested at about 6:30 p.m. while driving east on Interstate 94 near Delafield in Waukesha County. He was charged in a criminal complaint with driving under the influence of an intoxicant, contrary to sec. 346.63(1) (a), Stats., and the case was tried to a jury.

The arresting State Patrol trooper testified he clocked the defendant’s speed at as much as 82 miles per hour and observed his car veer onto the shoulder of the road three times before the trooper stopped him. The trooper testified that as the defendant got out of the car he “almost stumbled into the median, but he grabbed the door” and that he smelled an alcoholic beverage on the defendant’s breath. The defendant successfully touched his nose with his eyes closed and head cocked back with one hand; with the other he hit his upper lip. He was unable to walk steadily along a straight line at the highway’s edge. When the trooper took the defendant into custody, he seemed to act jovially, as though his arrest was a joke. At the station the defend[448]*448ant could not stand on one foot and did some sidestepping when asked to walk on a line, although his performance was better than it had been on the highway.

Trooper Thomas Osteen administered a breathalyzer test to the defendant. He testified that the defendant swayed while walking and standing and that his eyes were bloodshot. He noticed an odor of alcoholic beverage on the defendant’s breath. The defendant stipulated to the admission in evidence of the results of the breathalyzer test showing a blood-alcohol level of more than .17 percent.1 The following colloquy occurred between the prosecuting attorney and the trooper:

“Q. Would you indicate what the results of State’s test number fifteen was ?
“A. Test number fifteen is in the analysis phase and the results were a .17 plus blood-alcohol reading.
“Q. When you say .17 plus what does the plus signify?
“A. It was a little higher than the .17 reading. It was more to the .18.
[449]*449“Q. Would you indicate whether or not the Defendant had any difficulty breathing into the machine?
“A. No, he didn’t. None whatsoever.
“Q. Was there any conversation that you had with the Defendant to instruct him as to how to blow into the machine and its operation ?
“A. Yes, we instruct the people how to blow into the machine. In this particular case Mr. Draize advised me that he had been through this once before, he knows all about it.”

The defense objected and moved for a mistrial. During argument outside the presence of the jury, the defense moved alternatively to strike the answer and for an instruction to the jury to disregard it. The court denied the motions and Trooper Osteen’s testimony continued. He described the defendant as happy, carefree and cooperative, acting as though the arrest were just a joke. He testified that at one point the defendant leaned over, motioned to him, and said, “Boy, am I drunk.”

The defendant testified that at the time of his arrest he was driving to Milwaukee from Madison, where he had attended a University of Wisconsin football game. It was a hot afternoon. He had one beer before the game, drank nothing during the game, and afterwards went out for pizza and beer with his brother and a friend. The three split two pitchers of beer, which amounted to about seven, seven-ounce glasses each. The defendant admitted that he was speeding home to see an evening basketball game. He testified that he was absolutely not under the influence of an intoxicant and that he succeeded in touching his nose with both hands. He said that, in response to the trooper’s request that he walk a straight line, he took one step along the side of the road and refused to continue because a truck came by. He recalled that he was not asked to walk on a line at the station but instead to hop on one leg, which he did. He testified that he did not sway or stagger.

[450]*450On closing argument rebuttal, the prosecutor said:

“Now, I think that the best thing that we can ask of you, what you can ask of yourself is that you, to be fair. Above all you have to be fair to the defendant. Fair does not necessarily mean, Mr. Defendant, you can leave this courtroom, we find you not guilty. That is not always fair. Fair is the essential truth. What took place. Fair in this case I think is guilty. You’re labeling the defendant’s conduct for what it is. You’ve got to speak to him not only in terms of guilty or not guilty, but in terms of telling him, look, this is not the kind of driving you engage in. This is not the kind of activity you engage in — ”

Defense counsel objected, characterizing these remarks as an appeal to the jury’s prejudice by implying that the verdict would affect the ultimate disposition of the case. The court overruled the objection stating, “The reference made by Mr. Gempeler doesn’t state what if any finding should be made. It’s strictly argument again.” The prosecutor then asked the jurors to place themselves in the position of the arresting officer. The court overruled defense counsel’s immediate objection, stating that the jury could disregard the comments or consider them, as it pleased. As the rebuttal argument continued, the prosecutor again spoke of the jury putting itself in the officer’s position. The court overruled two additional objections to this line of argument. It instructed the jury, among other things, that the closing arguments should be considered carefully insofar as they may be helpful, but that they were not to be considered as evidence.

The jury found the defendant guilty as charged. Ten days later the trial court heard and denied the defendant’s motion for a new trial based on the receipt in evidence of the trooper’s testimony that the defendant told him he had taken a breathalyzer test before and on the content of the prosecutor’s rebuttal. The court rendered [451]*451judgment of conviction on the verdict and sentenced the defendant, staying the sentence pending appeal. On appeal the circuit court affirmed the judgment and stayed the sentence pending an appeal to this court.

The question presented are: (1) Was it prejudicial error to receive the testimony of the State Patrol trooper that the defendant told him he had taken a breathalyzer test before? (2) Was it prejudicial error to permit the prosecutor to tell the jurors to speak to the defendant through the verdict by “telling him, look, this is not the kind of driving you engage in”; and to tell the jurors, in considering the case, to place themselves in the viewing position of the arresting officer?

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Cite This Page — Counsel Stack

Bluebook (online)
276 N.W.2d 784, 88 Wis. 2d 445, 1979 Wisc. LEXIS 1921, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-draize-wis-1979.