Appeals court upholds conviction in Oneida County drunk driving homicide

The District III Court of Appeals, based in Wausau, has denied an appeal filed by a 40-year-old Stevens Point man serving a prison sentence in connection with a fatal accident in Minocqua in the summer of 2020.

In an opinion released Tuesday morning, the three-judge panel rejected Christopher A. Gore’s argument that former Oneida County circuit judge Patrick O’Melia erred when he denied a defense motion to suppress the results of a blood test taken hours after the July 12, 2020 accident that took the life of Cory L. Johnson Sr., 47, of Stevens Point.

The blood test showed Gore had a blood alcohol level of .239, according to the criminal complaint.

According to testimony offered at sentencing, Johnson was thrown from a vehicle Gore was operating at an estimated speed of 103 to 110 miles per hour. The vehicle went airborne before striking an unoccupied vehicle in the parking lot of a Minocqua restaurant.

In April 2021, approximately six months after the Oneida County district attorney’s office brought charges, Gore’s attorney Dennis Melowski filed a motion arguing that the blood test results should be tossed due to a flaw in the “informing the accused” form Minocqua Police Lt. Jason Benbenek read before the sample was taken.

 The state Supreme Court, in a 2017 case called State v. Blackman, found the version of the “informing the accused” form read to the defendant in that case to be unconstitutionally coercive as it misstated the consequences for refusing to submit to an implied consent test. (The form has since been revised by the state legislature.)

Because the same flawed form was read to Gore, Melowski argued Gore’s test results should be suppressed as well.

The Oneida County district attorney’s office opposed the motion. 

Prosecutors argued there was 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 while 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, only that he had failed to yield the right of way. 

In addition, the district attorney’s office argued that the “inevitable discovery doctrine” permitted it to submit evidence of Gore’s blood alcohol concentration despite the suppression otherwise required under Blackman.

Following an evidentiary hearing, O’Melia issued an order denying the defense motion.

Melowski attempted to immediately appeal that decision but the petition was denied. 

In late November 2022, Gore entered a plea of no contest to one count of homicide by use of a motor vehicle with a prohibited blood alcohol concentration.

Approximately two months later, in late January 2023, he was sentenced to five years in prison to be followed by five years extended supervision. 

That sentence was handed down by Judge Martha Milanowski of Vilas County who took over the case following O’Melia’s retirement in August 2022.

In April 2023, Gore appealed his conviction, reviving the argument that his consent to the blood draw was involuntary, due to the officer’s statement that his refusal to comply would result in both the revocation of his operating privileges and a call to a judge seeking a warrant. 

He also argued that O’Melia misapplied the inevitable discovery doctrine. 

“The lower court (O’Melia) premised its belief that the blood test result was subject to inevitable discovery on the supposition that “[b]ecause 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,” Melowski wrote.

“It is remarkable that the lower court would, as part of its reasoning, make the conclusory statement that a ‘warrant would have been granted’ in this case,” he continued. “This assertion is problematic for several reasons. First, it makes an implied assumption that the magistrate who would have been asked to issue the warrant would have been presented with the same facts upon which it based its conclusion. The lower court in this case had the benefit of hindsight in the sense that it was faced with an extremely well-developed record in which multiple evidentiary hearings had been held (during which there had been far more extensive examination of the witnesses than any affidavit made in support of a warrant could ever hope to include), and after which multiple briefs had been filed. It is only with this hindsight that the lower court concluded that the warrant would be an inevitability. Second, the lower court is substituting its judgment premised upon the facts of which it was aware for the judgment of another court for which no one can predict the facts of which it would be made aware. There are simply far too many variables which are unknown in this case for any court to draw an absolute conclusion that a warrant would certainly have been issued to obtain a blood sample in this matter.”

The appeals court agreed with O’Melia.

“We conclude that Blackman is distinguishable and the holding in that case does not require suppression of the results of Gore’s blood draw,” Judge Gregory B. Gill, Jr. wrote on behalf of the panel. “It is undisputed that the officer in this case was acting under WIS. STAT. § 343.305(3)(ar)2., that Gore was read the Informing the Accused form, and that Gore was not under arrest pursuant to § 343.305(3)(a). However, law enforcement had probable cause to believe that Gore was operating a motor vehicle while under the influence of alcohol, and Gore could have been arrested under § 343.305(3)(a) if he had refused a test under § 343.305(3)(ar)2. At that point, his operating privilege could have been revoked because ‘the officer had probable cause to believe [Gore] was driving or operating a motor vehicle while under the influence.’ Moreover, the officer’s statement that he would attempt to obtain a warrant if Gore refused to consent to a blood draw did not render Gore’s consent involuntary.”

Later in the opinion, Gill wrote that “probable cause plainly existed to arrest Gore for OWI” as Benbenek and Gaszak “reasonably believed that Gore was the driver of the crashed vehicle. The EMTs from the scene of the crash informed both Benbenek and Gaszak that they believed Gore was the driver. Gaszak also reached this conclusion based on the fact that Gore was not ejected from the vehicle and the driver’s seat belt appeared to have been used during the crash. Further, Gore was the registered owner of the vehicle.”

Furthermore, Gaszak smelled alcohol coming from Gore, and Gore informed both Benbenek and the EMTs that he had been consuming intoxicants that evening, Gill wrote.

“In sum, this case is factually and legally distinguishable from Blackman,” he concluded. “Law enforcement suspected that Gore was operating a vehicle that was involved in an accident that caused the death of another person. Law enforcement also had probable cause to believe that Gore was operating a motor vehicle while under the influence of alcohol. On this basis, Lieutenant Benbenek’s reading of the Informing the Accused form was an accurate description of what would occur under § 343.305(3)(a) and (9)(a)5. if Gore refused a blood draw under §343.305(3)(ar)2. Likewise, Benbenek’s statement that he would seek to obtain a search warrant was not unconstitutionally coercive.”

Gore can appeal the decision to the state Supreme Court but that body would have to agree to take up the matter.

Heather Schaefer may be reached at [email protected].