March 6, 2024 – Evidence that a driver had been drinking earlier in the day, had parked illegally, and was drunk when he was arrested was sufficient to sustain a conviction for operating while intoxicated, the Wisconsin Court of Appeals (District IV) has ruled in City of Watertown v. Wiest, 2023AP992 (Feb. 15, 2024).
While on patrol in 2021, a City of Watertown (City) police officer saw a truck parked in a no-parking zone on East Main Street shortly after bar time. The truck’s hi-beams were on.
As the police officer drove past the truck, she saw that one of the truck’s back tires was over the curb and up on the sidewalk. She also saw Andrew Wiest in the driver’s seat, his head leaned back and his mouth agape.
The officer parked next to Wiest’s truck. When she rapped on the window, Wiest awoke immediately.
Wiest couldn’t roll down the window, so he opened the door. The keys were in the ignition but the truck wasn’t running.
Jeff M. Brown , Willamette Univ. School of Law 1997, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by
email or by phone at (608) 250-6126.
The police officer smelled a pungent odor of alcohol from inside the truck. Wiest stepped out of the truck at the police officer’s command, grabbing the keys from the ignition as he did so.
Wiest said he’d had one or two beers at a campground outside Watertown earlier, at about 9 or 10 p.m. Wiest slurred his words and the police officer struggled to understand him.
After failing a series of field sobriety tests, Wiest consented to a blood test. The test results put Wiest far over the legal blood alcohol concentration limit.
Wiest admitted to the police officer that he’d driven the truck on East Main Street but denied that he’d been drinking; he also denied he’d drank or taken any drugs since he’d last driven.
Municipal Trial
At Wiest’s municipal trial in Jefferson County Circuit Court, the City and Wiest agreed that Wiest was not operating the truck when the officer came upon him, even though the keys were in the truck’s ignition.
But the City argued the following circumstantial evidence showed that Wiest had driven the truck while intoxicated:
the officer’s testimony about her encounter with Wiest;
the officer’s observations of Wiest’s truck; and
body camera footage that depicted the officer’s interaction with Wiest and her arrest of him.
Wiest testified that Wiest’s truck was obviously parked in a place and in a manner that it should not have been.
She also testified that she was confident she would have noticed Wiest’s truck, given how and where it was parked, if it had been present during one of her earlier passes down East Main Street.
After the city rested its case, Wiest moved for a directed verdict.
Wiest argued that the City hadn’t established the time that he’d last driven the truck, so the jury couldn’t conclude that he’d operated a vehicle under the influence of an intoxicant (OWI) or with a prohibited alcohol concentration.
The circuit court denied Wiest’s motion. The jury convicted Wiest of OWI and operating a vehicle with a prohibited alcohol concentration.
Wiest appealed.
Evidence Was Sufficient
Judge Rachel Graham decided the appeal under Wis. Stat. section 752.31(2)(b).
Graham began her unpublished opinion by concluding that there was plainly enough evidence from which the jury could have inferred that Wiest had operated the truck on a highway, one of the elements of OWI under section 346.61.
“The officer found Wiest asleep in the driver’s seat of the truck with the keys in the ignition, and there is no evidence suggesting that any other person drove the truck to that location and parked it,” Judge Graham wrote.
Graham also concluded that there was sufficient evidence to conclude that Wiest was drunk when he’d parked on East Main Street. She pointed out that Wiest admitted drinking elsewhere earlier that night but denied drinking after he’d last driven the truck.
Judge Graham also noted that Wiest was drunk when the police officer found him in the driver’s seat of the truck at 3 a.m., and that the truck was parked in a manner consistent with an intoxicated operator.
Lack of Timeline not Fatal
Graham concluded that the City’s failure to pin down the time that Wiest had driven the truck while drunk did not undercut the sufficiency of the evidence.
“The jury could have inferred from [the police officer’s] testimony that she had recently patrolled the area, that Wiest’s truck was not there during her latest patrol, and that Wiest had parked his truck on Main Street shortly before she encountered it,” Judge Graham wrote.
