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01-2337-CR State v. Zuerner

By: dmc-admin//June 10, 2002//

01-2337-CR State v. Zuerner

By: dmc-admin//June 10, 2002//

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Russell Zuerner appeals a judgment convicting him of operating a motor vehicle while under the influence of an intoxicant (OMVWI) as a third offense. He claims the trial court erred in denying his motion to suppress evidence of the results of a test of his blood for alcohol concentration. Specifically, Zuerner argues that the State should have obtained a breath test instead of a blood test, and that it should have obtained a warrant prior to analyzing the blood sample it withdrew from him. He also contends that because his consent to the testing of his blood was “coerced,” it cannot be relied on as an exception to the Fourth Amendment’s warrant requirement. We reject Zuerner’s contentions and affirm the appealed judgment insofar as it convicts him of OMVWI.Zuerner also seeks to be re-sentenced as a second-time OMVWI offender instead of a third-time offender. He claims that one of his prior OMVWI convictions may not be used to enhance his present penalty because the conviction was obtained in violation of his Sixth Amendment right to counsel.

We agree that, on the present record, Zuerner has made a prima facie showing that his prior criminal OMVWI conviction may be invalid for penalty enhancement purposes, and we remand for a new sentencing hearing.

This opinion will not be published.

Dist IV, Sauk County, Evenson, J., Deininger, J.

Attorneys:

For Appellant: Ralph A. Kalal, Monona

For Respondent: Sue Mueller, Baraboo

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