01-2995-CR State v. Frey

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Scott J. Frey appeals a judgment of conviction for operating a motor vehicle while intoxicated (OMVWI), as a third offense. His conviction arose out of an incident that occurred Nov. 14, 1999. At approximately 12:15 a.m., Officer W. Richards of the Sauk Prairie Police Department saw a vehicle weaving from side-to-side on the roadway. Richards noticed that at times the vehicle was driving down the middle of the roadway, crowding other vehicles as they approached. The officer stopped the vehicle and made contact with Frey who was the driver. Richards stated that he could smell the odor of intoxicants coming from the interior of the vehicle where Frey was sitting and that Frey’s eyes were red and glassy. The officer performed field sobriety tests on Frey, which he did not complete satisfactorily. Therefore, he was arrested for OMVWI and transported to the Sauk Prairie Memorial Hospital where his blood was drawn for testing. The tests showed he had a blood alcohol level of .258, a prohibited alcohol content (PAC), and he was cited for a violation of sec. 346.63(1)(b) as well as OMVWI.

Prior to trial, Frey moved to suppress evidence of the blood draw that he contends was performed in violation of the Fourth Amendment for the following reasons: there was no warrant permitting blood to be drawn, there existed a statutorily available breath test and a warrant was also required to conduct the blood tests. The circuit court denied his motion to suppress, and Frey pled to the charges.

We affirm.

This opinion will not be published.

Dist IV, Sauk County, Reynolds, J., Roggensack, J.

Attorneys:

For Appellant: Ralph A. Kalal, Madison

For Respondent: Kevin R. Calkins, Baraboo; Patricia A. Barrett, Baraboo