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State v. Wiedmeyer

Court of Appeals of Wisconsin, District II

May 18, 2016

State of Wisconsin, Plaintiff-Respondent,
Keith A. Wiedmeyer, Defendant-Appellant.

         APPEAL from an order of the circuit court for Washington County: No. 2014CF144 ANDREW T. GONRING, Judge.

          Before Reilly, P.J., Gundrum and Hagedorn, JJ.

          HAGEDORN, J.

         ¶1 WISCONSIN STAT. § 343.305 (2013-14) [1] is sometimes referred to as the "implied consent statute."[2] It generally provides that drivers who use Wisconsin roads consent to drug and alcohol testing, and dictates various procedures and consequences related to testing. This case is about § 343.305(6)(a), which prescribes various permitting requirements for tests to be "valid under this section." The question before us is whether the results of chemical tests for controlled substances that did not comply with the requirements of para. (6)(a) are admissible on the charge of operating a motor vehicle while intoxicated (OWI). The defendant, Keith A. Wiedmeyer, moved to suppress his tests results on this ground. The circuit court denied Wiedmeyer's motion, and we granted leave to file this permissive appeal.[3] We affirm and hold that test results failing to meet the requirements of para. (6)(a) are nevertheless admissible if the State otherwise lays the proper foundation.


         ¶2 According to the complaint, Wiedmeyer was involved in an accident when he rear-ended another vehicle twice. Wiedmeyer claimed that he sneezed a few times, and when he looked up the other vehicle was directly in front of him. However, after the accident, a witness described Wiedmeyer as "wobbling" around the area. The officer on the scene stated that Wiedmeyer and his vehicle smelled like marijuana. Wiedmeyer volunteered that he had been taking some prescription medications, and that his doctor had advised him not to drive. Based on this admission, he was subsequently charged with one count of OWI under Wis.Stat. § 346.63(1)(a) and one count of operating while revoked under Wis.Stat. § 343.44. Wiedmeyer's blood was later tested several times-once for alcohol, which came back negative, and twice for controlled substances. The tests for controlled substances revealed the presence of morphine and zolpidem.

         ¶3 Broadly speaking, Wis.Stat. § 343.305 relates to drug and alcohol testing for users of Wisconsin roads. Its provisions include consent, required notifications, administration of tests, and suspension of licenses. Wiedmeyer bases his appeal on § 343.305(6)(a), which provides:

(a) Chemical analyses of blood or urine to be considered valid under this section shall have been performed substantially according to methods approved by the laboratory of hygiene and by an individual possessing a valid permit to perform the analyses issued by the department of health services. The department of health services shall approve laboratories for the purpose of performing chemical analyses of blood or urine for alcohol, controlled substances or controlled substance analogs and shall develop and administer a program for regular monitoring of the laboratories. A list of approved laboratories shall be provided to all law enforcement agencies in the state. Urine specimens are to be collected by methods specified by the laboratory of hygiene. The laboratory of hygiene shall furnish an ample supply of urine and blood specimen containers to permit all law enforcement officers to comply with the requirements of this section.

Id. (emphasis added).

         ¶4 Although the analyst who tested Wiedmeyer for controlled substances testified that she was qualified, she admitted that she did not have a valid permit from the Department of Health Services (DHS) to conduct tests for controlled substances.[4] As it turns out, DHS does not issue such permits and has never issued them before. In addition, the lab where the testing was performed was not approved by DHS because DHS does not approve laboratories as contemplated by the statute. Based on these deficiencies, Wiedmeyer moved to suppress the test results, arguing that the results were "invalid" under Wis.Stat. § 343.305(6)(a) and thus inadmissible against him.

         ¶5 The circuit court rejected Wiedmeyer's argument and concluded that the results were not inadmissible. The court reasoned that Wis.Stat. § 343.305(6)(a) only applied to "this section, " and because Wiedmeyer was not being prosecuted under § 343.305, the results were not necessarily inadmissible. The court also concluded that Wiedmeyer's view would lead to absurd results considering the objective of Wis.Stat. § 967.055 "to encourage the vigorous prosecution" of OWI offenses. As a third rationale, the court surmised that § 343.305(6)(a) "might be inoperable for the want of a subject." Wiedmeyer then sought a permissive appeal which we granted.


         ¶6 Neither party disputes that the testing in this case failed to comply with Wis.Stat. § 343.305(6)(a). Thus, the only question is whether this failure precludes admission of the results. This is a question of statutory interpretation which we review de novo. See State v. Nellessen, 2014 WI 84, ¶13, 360 Wis.2d 493, 849 N.W.2d 654.

         ¶7 Wiedmeyer's argument is premised on the proposition that an "invalid" test under Wis.Stat. § 343.305(6)(a) is an inadmissible test in an OWI prosecution. Paragraph (6)(a) sets the standard for the evidentiary validity of chemical tests for intoxication, according to Wiedmeyer-at least for tests of controlled substances. Thus, he argues that the requirements in para. (6)(a) are foundational and exclusive; the State must prove compliance to have its test results admitted. Any other interpretation, he asserts, leaves para. (6)(a)-inasmuch as it relates to the validity of test results-without meaning. He further supports his argument by appealing to § 343.305(5)(d), which affirmatively grants admission to test results conducted pursuant to para. (6)(a). Wiedmeyer also disagrees with the circuit court's conclusion that his interpretation would violate public policy, and that para. (6)(a) is inoperative for want of a subject.[5]

         ¶8 The plain language of Wis.Stat. § 343.305(6)(a) states that testing must meet certain requirements "to be considered valid under this section." Id. The obvious, and in our view correct, inference is that validity applies only to "this section"-§ 343.305-not other statutes. The testing requirements of § 343.305(6)(a), therefore, do not preclude admission of noncomplying tests. Other statutory provisions establishing a sufficient foundation are in full force and effect. One ...

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