Motor Vehicles – OWI — sufficiency of the evidence — improper closing argument — prejudice

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Wisconsin Court of Appeals

Criminal

Motor Vehicles – OWI — sufficiency of the evidence — improper closing argument — prejudice

Steven Herbst was convicted following a jury trial of operating a motor vehicle while intoxicated, first offense, and for operating a motor vehicle with a prohibited blood alcohol concentration. He makes two arguments on appeal: (1) the court erred by allowing the City of Beloit to argue to the jury that simply touching a steering wheel constitutes “operating” within the meaning of the drunk driving statute, Wis. Stat. § 346.63, and that the court’s error was not harmless; and (2) that the evidence was insufficient to convict him of either charge. We conclude the evidence was sufficient to convict Herbst of OWI or prohibited alcohol concentration. However, we also conclude that the court erred by allowing the City to argue to the jury that simple touching of a steering wheel constitutes “operate” under § 346.63 and that the court’s error was not harmless. We therefore reverse and remand for a new trial.  This opinion will not be published.

2010AP2197 City of Beloit v. Herbst

Dist IV, Rock County, Forbeck, J., Higginbotham, J.

Attorneys: For Appellant: Wood, Tracey A., Madison; For Respondent: Krueger, Elizabeth A., Beloit