Court upholds Wausaukee man’s OWI conviction

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The Wisconsin Court of Appeals District III upheld a Wausaukee man’s conviction of fourth-offense operating a motor vehicle while intoxicated declining his argument of alleged judicial bias and an erroneous ruling on a closing argument objection.

Scott A. Krause was arrested for OWI after a report of erratic driving on March 15, 2020, when a witness reported his vehicle crossed the center line in Appleton. Police later found Krause slumped in the driver’s seat of a running vehicle with a blood alcohol content of .356 g/100mL.

Krause appealed his conviction and an order denying his postconviction motion, alledging judicial bias and an erroneous ruling on a closing argument objection.

Regarding judicial bias, Krause argued the judge’s comments during the trial suggested a lack of impartiality, including interruptions during voir dire and closing arguments that appeared to undermine defense counsel.

The court found no evidence of actual bias or a great risk of bias affecting the trial’s outcome.

“We conclude that Krause has failed to overcome the presumption of impartiality. He has failed to prove actual bias because he has failed to show that the circuit court judge did, in fact, treat him unfairly,” the Appeals Court wrote.

Krause also challenged the prosecutor’s statements during closing arguments regarding the definition of “operate.” ​His defense presented evidence that a woman was driving his car but parked the vehicle, leaving Krause inside.

Krause argued the state mischaracterized the law by claiming he “operated” the vehicle under certain conditions. When police approached Krause, they found him with his foot on the brake pedal in the running car. After approached by the police, he took his foot off the pedal and the vehicle began moving and Krause turned the vehicle off.

The appeals court ruled the prosecutor’s statements were not a misstatement of law and upheld the jury’s understanding of “operate” as defined in Wisconsin Statute 346.63(3)(b).

“We conclude that neither the prosecutor nor the circuit court misstated the law in relation to the former’s closing argument and the latter’s ruling on Krause’s objection and instructions to the jury,” the court wrote. “The facts in this case show precisely that it was Krause’s pushing down of the brake pedal which kept — that is, ‘controlled’ — the vehicle from otherwise being in motion.”