COURT OF APPEALS

DECISION

DATED AND FILED

December 7, 2023

Samuel A. Christensen

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2023AP241 Cir. Ct. No. 2020TR5481

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT IV

COLUMBIA COUNTY,

 PLAINTIFF-RESPONDENT,

 V.

CARTER RAY SMITS,

 DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Columbia County: 

TROY D. CROSS, Judge. Affirmed. 

¶1 KLOPPENBURG, P.J.1 A jury found Carter Smits guilty of 

operating a motor vehicle with a prohibited alcohol concentration, defined by 

 

1

 This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(c) (2021-22). 

All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
No. 2023AP241

2

statute as .08 or above, and the circuit court entered judgment consistent with the 

verdict.

2

 Smits appeals, arguing that the verdict was not supported by clear and 

convincing evidence. Specifically, Smits argues that his blood test result, showing

a blood alcohol concentration of .08, did not prove his guilt by clear and 

convincing evidence because of uncontroverted testimony that the test result was 

subject to a margin of error of “plus or minus 0.005.” I reject his argument and, 

therefore, affirm.

BACKGROUND

¶2 Smits was arrested following a traffic stop and subsequently issued 

citations for speeding, driving with open intoxicants, operating while under the 

influence of an intoxicant as a first offense, and operating with a prohibited 

alcohol concentration as a first offense. The case proceeded to a jury trial, at 

which the arresting officer and a forensic scientist at the Wisconsin State 

Laboratory of Hygiene testified.

¶3 The arresting officer testified as follows. He was on patrol overnight 

from August 15 to 16, 2020. At about midnight, he stopped a vehicle for 

suspected speeding. Before the vehicle pulled over, the officer had followed the 

vehicle on a hilly route that included numerous curves and observed no improper 

driving other than the vehicle’s speed. Smits was the driver and only occupant in 

the vehicle. The officer detected the odor of alcohol emitting from the vehicle and 

Smits’ person, and saw an open beer can in the cup holders near the center 

 

2

 See WIS. STAT. §§ 346.63(1)(b) (providing that no person may operate a motor vehicle 

with a prohibited alcohol concentration) and 340.01(46m) (defining “prohibited alcohol 

concentration” as “an alcohol concentration of .08 or more”).
No. 2023AP241

3

console. When the officer searched the vehicle, he found the open beer can in the 

center console cup holder, which was one-third full, an empty hard lemonade 

bottle on the floor board of the passenger’s seat, a “White Claw” in the door panel 

of the passenger door, and a cooler in the back containing alcoholic beverages. 

The officer then administered field sobriety tests and observed on two of the three 

tests clues indicating that Smits was impaired and “had consumed intoxicants.” 

During the testing, the officer also saw that Smits had bloodshot, glossy eyes. The 

officer then arrested Smits, obtained Smits’ consent to have his blood drawn, and 

took Smits to the hospital for the blood draw. The blood draw took place within 

an hour of the stop. Smits was cooperative and followed the officer’s directions 

throughout the encounter. 

¶4 The forensic scientist in the Forensic Toxicology program at the 

State Laboratory of Hygiene testified on direct examination as follows. She was 

the peer reviewer for the testing of the sample of Smits’ blood. She signed the 

State Laboratory of Hygiene report, which shows a blood alcohol concentration of 

.08, verifying that the result on the report is reliable and “reflects the testing that 

was done at the lab and the result of that testing.” In judging the quality of the

testing, the laboratory allows a “variability [of] plus or minus 0.005.” This 

allowed variability “acknowledge[s] that there’s actually a window around [the 

reported] value where the true result lies.” This allowed variability is not reflected 

in the test report, but is reflected in “judging the quality of any given day’s testing 

and making sure that the calibrators [] and the quality control materials meet their 

target windows.” 

¶5 The forensic scientist testified on cross examination that the allowed 

variability for Smits’ test result means that it is 95 to 99 percent certain that the 

actual result lies somewhere between .075 and .085. When asked if “there’s an 
No. 2023AP241

4

equal chance that [the test result] is below .08 as there is that it’s above,” she

answered, “Yes.” 

¶6 After the County rested its case, the circuit court granted Smits’ 

motion for a directed verdict dismissing the speeding charge based on the 

County’s failure to meet its burden of proof. The court denied Smits’ motion for a 

directed verdict dismissing the operating with a prohibited alcohol concentration

charge, ruling that there was “adequate evidence ... that the jury could find that by 

evidence to a clear, satisfactory, convincing standard[] that [Smits] was operating” 

at or above .08. Smits did not call any witnesses, and the jury went into 

deliberations. 

¶7 During deliberations, the jury requested and was given a copy of the 

State Laboratory of Hygiene report which had been offered and received into 

evidence and showed the .08 alcohol concentration result. 

¶8 The jury returned verdicts finding Smits guilty of driving with open 

intoxicants and of operating with a prohibited alcohol concentration, and not guilty 

of operating while under the influence of an intoxicant. 

¶9 The circuit court denied Smits’ motion for judgment notwithstanding 

the verdict on the operating with a prohibited alcohol concentration charge, and 

entered judgments of conviction consistent with the verdicts. 

¶10 Smits appeals the conviction for operating with a prohibited alcohol 

concentration. 
No. 2023AP241

5

DISCUSSION

¶11 The parties agree that the County’s burden of proof in this civil case 

is clear and convincing evidence. See City of Milwaukee v. Wilson, 96 Wis. 2d 

11, 22, 291 N.W.2d 452 (1980) (stating that, in forfeiture actions that involve or 

are closely associated with acts of a criminal nature, the County must prove a 

defendant’s guilt by clear and convincing evidence); see also WIS. STAT. § 345.45 

(standard of proof for conviction of a violation of a traffic regulation is clear and 

convincing evidence). Smits argues that the circuit court erred in denying his 

motions for directed verdict and for judgment notwithstanding the verdict, because 

the County did not present clear and convincing evidence that he was operating 

with a blood alcohol concentration of .08 or above. 

¶12 Whether to grant a motion for a directed verdict is subject to this 

court’s de novo review. See Millonig v. Bakken, 112 Wis. 2d 445, 450, 334 

N.W.2d 80 (1983). “The general underlying principle is that the jury is to be the 

trier of the facts and, in any circumstances where the facts are disputed or where 

different inferences may be drawn from the facts, the jury is to be the factfinder.” 

Id. at 449. “Thus, a verdict should be directed only where there is no conflicting 

evidence as to any material issue and the evidence permits only one reasonable 

inference or conclusion.” Id. at 451; WIS. STAT. § 805.14(1) (a directed verdict 

motion should be denied “unless the court is satisfied that, considering all credible 

evidence and reasonable inferences therefrom in the light most favorable to the 

party against whom the motion is made, there is no credible evidence to sustain a 

finding in favor of such party”). The reviewing court must affirm a ruling to deny 

a motion for a directed verdict provided there exists any evidence that supports the 

nonmoving party’s claim. Wisconsin Natural Gas v. Ford, Bacon & Davis 

Constr. Co., 96 Wis. 2d 314, 336, 291 N.W.2d 825 (1980). A review of the 
No. 2023AP241

6

evidence at trial is required to determine whether any material facts were in 

dispute and were properly left to the jury’s determination. City of Omro v. 

Brooks, 104 Wis. 2d 351, 353, 311 N.W.2d 620 (1981). 

¶13 Here, the evidence before the jury included the blood test result of 

.08 and the forensic scientist’s testimony as to its margin of error of plus or minus 

.005, which meant that it was equally likely that the actual result was below or 

above .08.

3

 The evidence also included the officer’s testimony that there were 

open and empty or nearly empty containers of alcoholic beverages in the vehicle, 

that Smits was the only person in the vehicle, that the odor of alcohol emitted from 

both the vehicle and Smits’ person, that Smits had red and glossy eyes, and that 

Smits showed clues indicating his having consumed intoxicants on two of the 

three field sobriety tests. A jury could reach more than one reasonable inference 

or conclusion as to whether the County had presented clear and convincing 

evidence that Smits’ actual blood alcohol concentration was .08 or above, i.e., 

within the margin of error at or above but not below the .08 test result, given the 

other evidence of his having consumed intoxicants. See WIS. STAT. § 885.235(4) 

(“[T]he admissibility of chemical tests for alcohol concentration or intoxication ...

shall not be construed as limiting the introduction of any other competent evidence 

bearing on the question of whether or not a person was under the influence of an 

intoxicant ... [or] had a specified alcohol concentration ....”). That is, a 

reasonable jury could find that the County had proven by clear and convincing 

evidence that Smits was operating with a blood alcohol concentration of .08 or 

 

3

 Smits inaccurately frames this testimony as stating that it was equally likely that his 

blood alcohol concentration “was above or below the legal limit,” rather than above or below .08, 

which is illegal, not legal.
No. 2023AP241

7

between .08 and .085. Thus, the circuit court did not err in denying Smits’ motion 

for directed verdict and leaving the question for the jury to decide.

¶14 This court’s review of a denial of a motion for judgment

notwithstanding the verdict is also de novo. Fricano v. Bank of America NA, 

2016 WI App 11, ¶19, 366 Wis. 2d 748, 875 N.W.2d 143 (2015). A motion for 

judgment notwithstanding the verdict does not challenge the sufficiency of the 

evidence; rather, “such a motion ‘admits for purposes of the motion that the 

findings of the verdict are true, but asserts that judgment should be granted the 

moving party on grounds other than those decided by the jury.’” Id. (quoted 

source omitted); see also WIS. STAT. § 805.14(5)(b) (motions for judgment 

notwithstanding the verdict are reserved for instances when a party believes that 

“the verdict is proper but, for reasons evident in the record which bear upon 

matters not included in the verdict, [the moving party] should have judgment”). 

¶15 As stated, Smits contends that the circuit court should have granted 

his motion for judgment notwithstanding the verdict because the jury’s verdict was 

not supported by clear and convincing evidence of guilt. This court’s task as a 

reviewing court is limited to determining whether the evidence presented could 

have convinced a trier of fact, acting reasonably, that the appropriate burden of 

proof has been met. Wilson, 96 Wis. 2d at 21.

¶16 For the same reason that Smits’ motion for directed verdict was 

properly denied—that, viewed under the clear and convincing standard, the 

evidence presented raised a question as to whether Smits was operating with an 

alcohol concentration of .08 or more and permitted more than one reasonable 

inference on that point—so his motion for judgment notwithstanding the verdict 

was also properly denied. It cannot be said that all of the evidence summarized 
No. 2023AP241

8

above was “so insufficient in probative value and force that ... no trier of fact, 

acting reasonably, could have found guilt” by clear and convincing evidence. See

State v. Schwebke, 2002 WI 55, ¶40, 253 Wis. 2d 1, 644 N.W.2d 666. Thus, I 

conclude that there was adequate evidence from which the jury could determine 

that the County met its burden of proof.4

¶17 Smits’s arguments to the contrary do not persuade. Smits correctly 

states that “[b]oth questions [regarding the denial of his motions for directed 

verdict and judgment notwithstanding the verdict] hinge on whether credible 

evidence or reasonable inferences from it could clearly and convincingly prove 

that Mr. Smits had a [blood alcohol concentration] of .08 or higher.” Smits argues 

that both questions must be answered in the negative because the blood test result,

accompanied by its margin of error, was “the only evidence” of Smits’ blood 

alcohol concentration and, therefore, “the sole evidence” before the jury to support 

the verdict, “without any evidence [the jury] could use to tip the scale” within the 

margin of error. This argument ignores the other evidence, summarized above, 

that the jury could have also considered to “tip the scale” and infer that Smits’ 

blood alcohol concentration was within the range of margin of error at .08 or 

above.

¶18 Smits acknowledges that “other evidence could reasonably support 

the test result by showing indications of impairment or alcohol intoxication,” but

 

4

 Smits’ statement of the issue in his appellant’s brief suggests that he may also be 

arguing that the evidence was insufficient to find Smits guilty of driving with a prohibited alcohol 

concentration. I do not consider this argument because it is undeveloped and unsupported by 

legal authority. See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992) 

(stating that this court may decline to consider arguments that are unsupported by references to 

legal authority and inadequately briefed).
No. 2023AP241

9

argues that there was no such evidence here, as reflected in the jury’s verdict 

acquitting Smits of driving while under the influence of an intoxicant. However, 

as the circuit court instructed the jury:

Not every person who has consumed alcoholic 

beverages is “under the influence” as that term is used here. 

What must be established is that the person has consumed a 

sufficient amount of alcohol to cause the person to be less 

able to exercise the clear judgment and steady hand as is 

necessary to handle and control a motor vehicle. It is not 

required that impaired ability to operate be demonstrated by 

particular acts of unsafe driving. What is required is that 

the person’s ability to safely control the vehicle be 

impaired.

See WIS JI—CRIMINAL 2668 (2015). That the jury found that the County did not 

prove by clear and convincing evidence that Smits’ ability to safely control his 

vehicle was impaired does not negate the conclusion, as explained above, that the 

evidence sufficed under the clear and convincing standard to show that Smits’ 

alcohol concentration was at .08 or above.5

CONCLUSION

¶19 For the reasons stated, the judgment of conviction is affirmed.

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT.

RULE 809.23(1)(b)4.

 

5

 Smits faults the circuit court for paying inadequate “attention” to the evidence before 

the jury. This assertion is neither supported by the record nor appropriate.