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08/22/83 STATE WISCONSIN v. GERALD R. TURNER

August 22, 1983

STATE OF WISCONSIN, PLAINTIFF-RESPONDENT,
v.
GERALD R. TURNER, DEFENDANT-APPELLANT



Appeal from a judgment of the Circuit Court for Milwaukee County: Janine P. Geske, Judge.

Petition to Review Pending. This Petition was not Decided at the Time the Volume Went to Press. Its Disposition will be Reported in a Later Volume.

Wedemeyer, P.j., Decker and Moser, JJ.

The opinion of the court was delivered by: Moser

Gerald R. Turner (Turner) appeals from a judgment of conviction and a sentence to confinement entered on November 8, 1982, following a jury verdict of guilty for operating an automobile under the influence of an intoxicant, contrary to sec. 346.63(1), Stats. Pursuant to an order of the Chief Judge dated July 26, 1983, we are deciding this case by a three-Judge panel. We affirm.

On September 26, 1981, at approximately 3:55 a.m., city of Milwaukee police officers observed Turner driving north on a southbound one-way street. The officers pursued Turner for two blocks before he stopped. As Turner exited his car, he stumbled backwards. The officers noticed that Turner's speech was slurred, his eyes were glassy and his breath had an odor of alcohol. The officers asked Turner to perform two field sobriety tests. Turner passed a finger-to-nose test, but he failed to walk a straight line. Turner was then arrested and conveyed to the First District Police Station.

At the station, Turner was taken to a breathalyzer room and issued a citation for operating a motor vehicle while under the influence of an intoxicant. The arresting officer then read Turner the "Informing the Accused" form. Turner agreed to take a breathalyzer test and also requested an alternate blood test. Turner was asked where he wanted the blood test performed. Turner left the choice of facilities up to the officer. Turner was then given the breath test at 4:31 a.m. The result showed that Turner had a blood alcohol level of .16%. The test ampoule was saved by the breathalyzer operator.

Turner was then taken to St. Anthony Hospital. The officers chose this facility because of its proximity to the station. A blood sample was taken from Turner at approximately 6 a.m. The result showed a blood alcohol level of .196%. The blood sample was destroyed one week later, pursuant to the hospital's standard procedure. St. Anthony Hospital was not certified by the Wisconsin State Hygiene Laboratory for testing of blood alcohol levels.

During the course of the trial, the trial court admitted into evidence the results of the breathalyzer test and the blood test over Turner's objections.

On appeal Turner raises the following issues:

(1) whether the trial court erred in admitting evidence of the results of his blood test;

(2) whether the trial court erred in admitting evidence of the results of his breathalyzer test;

(3) whether the trial court erred in finding that he was issued a citation prior to being given a breathalyzer test;

(4) whether the trial court erred in omitting certain portions of his requested ...


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