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COURT OF APPEALS
NOTICE
DECISION
DATED AND FILED                                                                                        This opinion is subject to further editing.   If
published, the official version will appear in
the bound volume of the Official Reports.
February 20, 2003
A party may file with the Supreme Court a
Cornelia G. Clark                                                                                                                                                        petition to review an adverse decision by the
Clerk of Court of Appeals                                                                                                                                                Court of Appeals.   See WIS. STAT. § 808.10
                                                                                                                                                                         and RULE 809.62.
                                                                                                                                                                         Cir. Ct. No.   01-CT-244
Appeal No.                                                                                             02-2349-CR
STATE OF WISCONSIN                                                                                                                                                       IN COURT OF APPEALS
                                                                                                                                                                         DISTRICT IV
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
DENNIS L. OLSON,
DEFENDANT-APPELLANT.
APPEAL from a judgment of the circuit court for Sauk County:
GUY D. REYNOLDS, Judge.  Affirmed.
¶1                                                                                                     ROGGENSACK,  J.1    Dennis  L.  Olson  appeals  a  judgment  of
conviction for operating a motor vehicle while intoxicated (OMVWI), contrary to
1  This appeal is decided by one judge pursuant to WIS. STAT.  § 752.31(2)(f)  (1999-
2000).   Additionally, all further references to the Wisconsin Statutes are to the 1999-2000 version
unless otherwise noted.




No.   02-2349-CR
WIS. STAT.  § 346.63(1)(a), second offense.   Because we conclude that there is
nothing in the arguments presented in this appeal that bears on the circuit court’s
judgment of conviction for a violation of § 346.63(1)(a), we affirm the judgment
of the circuit court.
BACKGROUND
¶2                                                                                        On June 24, 2001, at approximately 1:35 a.m., Officer J. Wepking of
the Sauk Prairie Police Department was notified of a possible drunk driver heading
south on the highway towards Sauk City.   Wepking located the vehicle and while
following a short distance behind it, saw the vehicle swerve within its lane of
traffic and cross the center line.   Wepking stopped the car, approached Olson and
asked him to step out of the vehicle. Olson attempted to exit the car but because he
failed to put the car in gear, it started to roll backwards.   Wepking instructed Olson
to put his foot on the brake and to put the car back into gear.   Wepking then asked
Olson if he had been drinking, and Olson replied that he had had a couple of beers.
Wepking asked Olson to perform field sobriety tests; Olson agreed, and using the
vehicle to keep his balance, exited the vehicle.
¶3                                                                                        During the administration of the sobriety tests, Wepking noticed that
Olson swayed from side-to-side, that his speech was slurred and that he smelled
heavily of intoxicants.   Olson failed to successfully complete the sobriety tests and
Wepking arrested him for OMVWI.    Wepking then transported Olson to Sauk
Prairie Memorial Hospital for a blood draw.   Olson was read the Informing the
Accused Form and asked to submit a sample of his blood for testing.    Olson
agreed and the blood draw produced a blood alcohol level of .196, a prohibited
alcohol concentration (PAC) for a driver of a motor vehicle under Wisconsin law,
pursuant to WIS. STAT. § 346.63(1)(b).
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No.   02-2349-CR
¶4                                                                                        Olson moved to suppress the results of the blood test.   The court
denied his motion, and he pled no contest to OMVWI based on the facts in the
criminal complaint.
DISCUSSION
Standard of Review.
¶5                                                                                        The facts relevant to Olson’s conviction are not disputed.   Therefore,
whether those facts and the legal arguments presented on appeal require reversal is
a question of law that we review de novo.    See Monroe County v. Kruse,  76
Wis. 2d 126, 128, 250 N.W.2d 375, 376 (1977).
Conviction.
¶6                                                                                        Olson appeals the judgment of conviction for OMVWI, a violation
of WIS. STAT. § 346.63(1)(a).2   Olson alleges that the conviction is invalid because
the blood draw and the subsequent chemical analysis of his blood violated his
Fourth  Amendment  protections  against  unreasonable  searches  and  seizures.
Although Olson consented to the blood draw, he now argues that his consent was
coerced  by  the  threatened  sanction  of  a  loss  of  driving  privileges.    Stated
differently, Olson challenges the constitutionality of WIS. STAT.  § 343.305 and
thereby, his conviction.
¶7                                                                                        In  order  to  sustain  its  burden  of  proof  for  the  OMVWI,  the
prosecution was required to establish that (1) Olson was operating a vehicle on the
2  While Olson was charged with violations of both WIS. STAT.  §§ 346.63(1)(a) and
346.63(1)                                                                                 (b), he was convicted of violating only § 346.63(1)(a).
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No.   02-2349-CR
highway and (2) Olson was under the influence of intoxicants.   Kruse, 76 Wis. 2d
at 131, 250 N.W.2d at 377.   The supreme court has recognized that a driver may
have a PAC according to the terms of WIS. STAT. § 346.63(1)(b) but not be under
the influence of an intoxicant.   State v. Bohacheff, 114 Wis. 2d 402, 415-16, 338
N.W.2d 466, 473 (1983).   Therefore, a finding of guilt for driving with a PAC is
not necessarily intertwined with a finding of guilt for OMVWI.   See id.
¶8                                                                                        On appeal for his conviction of OMVWI, Olson does not argue that
he would not have been convicted of OMVWI if the suppression motion relating
to the blood test had been granted, nor does he argue that the evidence contained
in the criminal complaint and used by the circuit court is insufficient to support his
conviction  of  OMVWI,  without  the  results  of  the  blood  test.    Therefore,  the
arguments that Olson presents in this appeal could not result in a reversal of his
judgment of conviction for OMVWI, even if we were to accept his views as
accurate statements of the law, which we do not.
¶9                                                                                        Accordingly,  although  the  State  argues  that  Olson’s  conviction
should be affirmed under the holdings in State v. Krajewski, 2002 WI 97, 255
Wis. 2d 98, 648 N.W.2d 385, cert. denied, 123 S. Ct. 704 (Dec. 16, 2002), State v.
VanLaarhoven, 2001 WI App 275, 248 Wis. 2d 881, 637 N.W.2d 411 and State v.
Wintlend,  2002  WI  App  314,  __  Wis. 2d  ___,  655  N.W.2d  745  because  we
conclude that there is nothing in the arguments presented in this appeal that bears
on the circuit court’s judgment of conviction for Olson’s violation of WIS. STAT.
§ 346.63(1)(a),   we   do   not   analyze   the   applicability   of   Krawjewski,
VanLaarhoven, Wintlend, or any other case relating to the Fourth Amendment
issues raised  by Olson.    Instead, we affirm the judgment of  the circuit court
without further discussion.
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No.   02-2349-CR
By the Court.—Judgment affirmed.
This opinion will not be published.  See WIS. STAT. § 809.23(1)(b)4.
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