September 16, 2021 at 1:50 p.m.
O'Melia denies motion to suppress in OWI homicide case
O'Melia denies motion to suppress in OWI homicide case
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 as well as 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 the preliminary hearing and during a hearing on the suppression motion, held on June 11, it was Lt. Jason Benbenek 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.
Melowski also argued that Gore's "patient care report" from when he arrived at the 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.
During the June motion hearing, Melowski reiterated his argument that 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.
Assistant district attorney Jillian Pfeifer strongly disputed that argument.
Pfeifer 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."
Several weeks later, on Aug. 3, Melowski filed a supplemental brief further outlining his argument.
On Sept. 2, O'Melia filed his written decision and order on the suppression motion as well as a defense motion challenging the constitutionality of Wis Stat. 343.305(3)(ar)2.
Both motions were denied.
In explaining his decision on the suppression motion, O'Melia indicated he agreed with the state that Gore's case is distinguishable from the Blackman case in several key areas.
"Here, unlike in Blackman, sufficient probable cause existed to place the defendant under arrest for an OWI offense. Yet, because of his injuries, the defendant's medical treatment took priority at the scene," O'Melia wrote. "In Blackman, it was evident that, before the blood draw was administered, Deputy Sheriff Abler did not have any reason to believe that Mr. Blackman was under the influence of intoxicants. At the suppression hearing, he testified that he noticed no odor of intoxicants coming from Mr. Blackman; he noticed no slurred speech; he noticed no bloodshot or glassy eyes; he noticed no signs with his balance or coordination; he noticed no mental impairment; and, lastly, he "never observed anything that [he] would have attributed to even the consumption of alcohol."
In contrast, at the time the blood draw was administered in the Gore case, the following information was known to Officer Gaszak and Lieutenant Benbenek:
• A one vehicle rollover accident occurred on July 12, 2020, involving two occupants and one possible fatality, which was made known to Officer Gaszak via dispatch on 9:22 p.m.;
• The weather conditions were noted as being dry roads and dusk lighting outside;
• The medics informed Officer Gaszak that the defendant stated he had been drinking "a little bit";
• Officer Gaszak learned that Gore is the registered owner of the automobile involved in the accident;
• Officer Gaszak himself noticed an odor of intoxicants coming from the defendant;
• Based on the seatbelts, Officer Gaszak reasonably inferred that the defendant had been the driver of the vehicle.
• Officer Gaszak called Lieutenant Benbenek and informed Benbenek of the following: the driver's seat belt was buckled in and stretched out; the passenger was the one ejected and it does not appear the passenger was wearing a seatbelt; the driver, the defendant, was the registered owner of the vehicle, the passenger is the individual deceased; the driver admitted to drinking intoxicants; the driver was conscious; Officer Gaszak could smell alcohol on the driver, and that the driver was not really answering his questions but had informed him that he had been golfing and "here to meet his buddies." Based on this information, Officer Gaszak requests that Lieutenant Benbenek respond to Howard Young Hospital to perform a blood draw.
"Based on law enforcement's objective knowledge and experience, they possessed sufficient information that 'would lead a reasonable police officer to believe that the defendant probably was under the influence of an intoxicant while operating his vehicle,'" the judge concluded.
Furthermore, O'Melia ruled that the blood draw results are admissible pursuant to the doctrine of inevitable discovery.
"Lieutenant Benbenek's body cam footage indicates he informed the defendant that if the defendant refused to consent to a blood draw, Lieutenant Benbenek would 'call the Judge to get a warrant for it.' Because probable cause existed to arrest the defendant for the OWI offense, the warrant would have been granted and the blood draw would have inevitably occurred," O'Melia wrote. "This would not have been an option to the law enforcement officer in Blackman, because there was no indication that the defendant was under the influence of an intoxicant so a judge would not have granted a search warrant for the blood draw. Therefore, even assuming without finding that the inaccuracy of the Informing the Accused form rendered the defendant's consent involuntary, the inevitable discovery doctrine would apply to prevent the blood draw results from being suppressed pursuant to the exclusionary rule."
Gore's next court appearance has not yet been scheduled.
If convicted, he could be sentenced to up to 25 years in prison with a mandatory minimum of five years.
Heather Schaefer may be reached at [email protected].
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