Motor Vehicles — operating with detectable amount of controlled substances — due process

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Wisconsin Court of Appeals

Criminal

Motor Vehicles — operating with detectable amount of controlled substances — due process

Even though the government destroyed the sole evidence of the defendant’s guilt prior to notice, charging, or a meaningful opportunity for the accused to inspect the State’s evidence, the defendant’s due process rights were not violated.

“Weissinger was able to cross-examine persons in the chain of custody as well as persons involved in the testing of her blood sample. Additionally, the trial court allowed Weissinger to examine the State’s witnesses regarding the destruction of the blood sample. Thus, the only difference between this case and Disch and Ehlen is that in those cases the defendants were arrested and advised of their ability to obtain further tests. See WIS. STAT. § 343.305(2)-(4). Weissinger was not under arrest, and thus the officer was under no obligation to advise her regarding additional tests. That factual difference does not compel a different result here. Youngblood, Greenwold I, and Greenwold II establish the test we must apply to determine whether there has been a due process violation by the destruction of evidence. Weissinger has not shown that the destroyed test was apparently exculpatory or that the test was destroyed in bad faith.” Affirmed.

Recommended for publication in the official reports.

2013AP218-CR State v. Weissinger

Dist. II, Ozaukee County, Williams, J., Neubauer, J.

Attorneys: For Appellant: Boyle, Gerald P., Milwaukee; Boyle, Bridget E., Milwaukee; For Respondent: Gerol, Adam Y., Port Washington