June 17, 2021 at 4:46 p.m.
Judge hears testimony on motion to suppress blood test in Minocqua OWI homicide case
Judge hears testimony on motion to suppress blood test in Minocqua OWI homicide case
By River News Staff-
According to the criminal complaint, Christopher Gore and a passenger were traveling westbound on State Highway 70 in Minocqua on July 12, 2020 when their vehicle entered a ditch, fish-tailed and struck a driveway embankment. The vehicle rolled several times and the passenger, a 47-year-old man, was pronounced dead at the scene.
Gore was later charged with homicide by intoxicated use of a motor vehicle and homicide by intoxicated use of a motor vehicle with a prohibited blood alcohol concentration.
During the preliminary hearing in November, Minocqua police officer Devon Gaszak relayed his observations from the moment he arrived on scene through Gore's transport to the hospital by ambulance. He testified that he detected the odor of intoxicants coming from Gore. However, Gore could not be put through field sobriety tests due to his injuries.
According to testimony at both the preliminary hearing and the June 11 motion hearing, it was Lt. Jason Bembenek of the Minocqua Police Department who communicated with Gore at the hospital and secured the blood sample, the results of which showed Gore had a blood alcohol level of .239.
In April, defense attorney Dennis Melowski filed motion arguing that the blood test results should be deemed inadmissible due to a flaw in the "informing the accused" form Benbenek read to Gore before the sample was taken and because Gore's injuries left him unable to give informed consent.
In support of this argument Melowski cited State v. Blackman, a 2017 Wisconsin Supreme Court decision where the justices determined the wording of the "informing the accused" form (ITAF) misstates the current status of the law.
"The court specifically identified the following representations as misleading. First, the ITAF misrepresented that for persons who refuse to take a test requested under Wis. Stat. § 343.305(3)(ar)2., the penalty is not a revocation of the person's operating privilege, but rather, the person is subject to 'arrest' for the act of refusing. Second, the court took issue with the fact that the form did not warn those persons who are asked to take a test under § 343.305(3)(ar)2. that probable cause is not a necessary prerequisite for the officer to request a test, unlike those tests requested under § 343.305(3)(a) which first requires probable cause to arrest before a test could be taken. Finally, the Blackman court found that the statutory scheme for challenging refusal revocations was now erroneously constructed because it left the issue of 'probable cause to arrest' for an operating while intoxicated violation as the first issue to be decided at a hearing for an alleged refusal under § 343.305(3)(ar)2. which, as noted earlier, does not require a 'scintilla of suspicion that the driver is intoxicated.'" Melowski's motion reads.
In the Blackman case, the state Supreme Court found that because the form misadvised Blackman about the law, the consent to testing was "coerced" under the Fourth Amendment to the Constitution. As a result, his blood test results were suppressed.
As the form has not been corrected since the Blackman ruling, Melowski argued the test results in Gore's case should also be suppressed.
In a second motion, Melowski also argued that Gore's "patient care report" from when he arrived at the Ascension-Howard Young Medical Center emergency room said he was suffering from an "altered mental status" and was "confused." Nurses' notes also said that Gore appeared "uncomfortable" and that the nurse could not complete evaluations that required responses from Gore due to his "altered mental status," according to the defense motion.
Melowski attempted to introduce the medical notes during Friday's hearing but was denied after assistant district attorney Jillian Pfeifer objected. Pfeiffer insisted the defense could not introduce such evidence via its cross-examination of Benbenek and must authenticate the records through a witness with knowledge of its contents.
After O'Melia sustained the objection, Melowski requested a continuance.
The parties did however engage in a vigorous debate over the circumstances surrounding the blood draw from Gore, with Melowski stressing that Benbenek specifically told Gore he was requesting a blood sample because Gore was involved in a fatal accident and that the "informing the accused" form provided information to Gore that didn't actually apply to him because he was not placed under arrest.
Melowski argued the circumstances in Gore's case are "on point" with the Blackman case and thus Gore's blood test should be suppressed as Blackman's was.
Pfeifer, however, argued there is a clear distinction between the Blackman case and Gore's situation in that the officers investigating the Gore accident had "probable cause" to believe that Gore was under the influence of intoxicants whereas the investigating officer in the Blackman case testified there was no indication whatsoever that Blackman had consumed alcohol before his vehicle collided with a bicyclist in Fond du Lac County in 2013.
In the Blackman case, the investigating officer stated he had reason to believe Blackman may have failed to yield the right of way, in violation of traffic laws, but there was no indication that Blackman had consumed alcohol or that it played any role in the collision. Blackman exhibited no odor of intoxicants, glassy or bloodshot eyes, slurred speech, balance or coordination problems or mental impairment, he testified.
In the Gore case, Pfeiffer argued the "collective knowledge" of Gaszak and Benbenek and the "totality of the circumstances," which included the detection of the odor of intoxicants coming from Gore and the defendant's own statement that he had been drinking prior to the accident, constitute sufficient probable cause.
"The state would argue there was more than enough probable cause to arrest (Gore) and that's why this is not a Blackman issue," she told O'Melia. "That's the key distinction. In Blackman, there was no probable cause."
"If (Gore) refused (to voluntarily submit to the blood draw) they would have obtained a warrant," she added. "The fact that Lt. Benbenek did not utter the words 'you're arrested,' I don't think is necessary."
The hearing ended with O'Melia directing both sides to submit briefs on the "Blackman" issue. Melowski has also filed a motion challenging the constitutionality of Wis Stat. 343.305(3)(ar)2. However, that motion was not argued Friday.
If convicted, Gore could be sentenced to up to 25 years in prison with a mandatory minimum of five years.
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