The Wisconsin Supreme Court announced Friday it will not hear an appeal of a conviction stemming from a 2016 Oneida County OWI accident, leaving the defendant's conviction to stand. The case of State v. Jude W. Giles was included on the court's Feb. 21 list of cases that have been denied review.
Giles, 48, was attempting to appeal a 3rd District Court of Appeals ruling from October 2019 upholding Oneida County Circuit Judge Patrick O'Melia's decision to block the results of a preliminary breath test (PBT) from being presented at trial.
Giles has repeatedly argued his constitutional right to present a defense was violated when O'Melia ruled that the results of a preliminary breath test administered to him at the scene of an April 3, 2016 accident in Woodruff, taken minutes after a crash, could not be admitted into evidence at trial.
While Giles admitted to consuming six to eight shots of vodka just before the crash, which involved his vehicle read-ending another vehicle, he argued the results of the PBT would show his body was still in the "absorption" phase at the time of the accident and thus he was not legally drunk. The result of the PBT was a blood alcohol level of .07, which is below the legal limit, while a blood test taken at a hospital later on the day of the accident showed a blood alcohol level of .144.
"It takes about an hour to an hour and a half for a dose of alcohol to be absorbed into the bloodstream," according to Giles' brief to the court of appeals.
"At the time Mr. Giles submitted a preliminary breath test, the alcohol was beginning to enter his bloodstream, but was not completely absorbed," according to the brief. "At that time, his alcohol concentration was .07. After the police arrested Mr. Giles and some more time passed, the police withdrew Mr. Giles blood. At that time, Mr. Giles alcohol concentration was .144. The two tests together show that Mr. Giles' alcohol concentration was rising even after the police arrived on the scene, and supports the claim that Mr. Giles was not intoxicated at the time of the accident."
At trial, Giles faced charges of OWI causing injury (2+), PAC causing injury (2+), OWI (2nd) and operating with a PAC (2) in connection with the accident. A jury found him guilty of the misdemeanor OWI charge but was unable to reach a verdict on the first two charges, both class H felonies, following a two-day jury trial. O'Melia declared a mistrial on the felonies, which were later dismissed without prejudice.
O'Melia later sentenced Giles to 30 days in jail with Huber privileges. Giles was also fined $1,570 and had his license revoked for 13 months.
He has been seeking a new trial ever since, arguing the jury would have acquitted him if allowed to hear the results of the PBT.
"The relevance of the preliminary breath test substantially outweighs any possible prejudicial effect. Without the results of the preliminary breath test, Mr. Giles was not able to offer evidence to show that he was intoxicated at the time his blood was drawn, but he was not intoxicated at the time he operated his vehicle," the appeal brief said. "The evidence of Mr. Giles alcohol concentration close to the time he operated the vehicle is so relevant and probative, that Mr. Giles was not able to effectively present his defense without it. Since Mr. Giles was not able to effectively present his defense without the results of his preliminary breath test, Mr. Giles was denied his constitutionally protected rights under the compulsory clause."
In October 2019, the 3rd district court of appeals in Wausau upheld O'Melia's decision to bar the results of the PBT from the trial.
In its ruling, the appeals court noted the state legislature has instructed that the results of preliminary breath screenings are only admissible to show probable cause for an arrest, if the arrest is challenged, or to prove that a chemical test was properly required or requested..."
Appeals to the state's highest court are not automatically heard by the court.
"As the state's law-developing court, the Supreme Court exercises its discretion to select for review only those cases that fit certain statutory criteria," the court's website notes.
The criteria are as follows:
(a) A real and significant question of federal or state constitutional law is presented.
(b) The petition for review demonstrates a need for the supreme court to consider establishing, implementing or changing a policy within its authority.
(c) A decision by the supreme court will help develop, clarify or harmonize the law, and
1. The case calls for the application of a new doctrine rather than merely the application of well-settled principles to the factual situation; or
2. The question presented is a novel one, the resolution of which will have statewide impact; or
3. The question presented is not factual in nature but rather is a question of law of the type that is likely to recur unless resolved by the supreme court.
(d) The court of appeals' decision is in conflict with controlling opinions of the United States Supreme Court or the supreme court or other court of appeals' decisions.
(e) The court of appeals' decision is in accord with opinions of the supreme court or the court of appeals but due to the passage of time or changing circumstances, such opinions are ripe for reexamination.
Because the State Supreme Court has denied review of the case, Giles' conviction will stand.
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