### COURT OF APPEALS DECISION DATED AND FILED October 14, 2020

Sheila T. Reiff 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 W IS . S TAT . § 808.10 and R ULE 809.62.

Appeal No. 2019AP 2099

- CR Cir. Ct. No. 2018CT 351 STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT II

S TATE OF W ISCONSIN ,
P LAINTIFF - R ESPONDENT ,

V .
M ICHAEL J. P IERQUET ,
D EFENDANT - A PPELLANT .

APPEAL from a judgment of the circuit court for Fond du Lac County: DALE L. ENGLISH , Judge. Affirmed

. ¶ 1 GUNDRUM, J. 1 Michael Pierquet appeals from a judgment of conviction for operating a motor vehicle with a prohibited blood alcohol

1 This appeal is decided by one judge pursuant to W IS

. S TAT

. § 752.31(2)( f ) (2017

- 18). All references to the Wisconsin Statutes are to the 2017

- 18 version unless otherwise noted.No. 2019AP 2099

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2 con centration ( B AC), second offense

. He argues that the circuit court erred in admitting at trial the results of an analysis of his blood sample and in affording the results prima facie effect because “the State fai led to establish that the analyst who performed the test possessed a valid permit for alcohol testing

. ” For the following reasons, we affirm.
Background

¶ 2 Following law enforcement contact related to operating a motor vehicle while intoxicated ( OWI ) , a sample of Pierquet’s blood was drawn , which subsequently was received by the Wisconsin State Laboratory of Hygiene on August 10, 2018

. Pierquet was charged with OWI and operating with a prohibited
B AC , and a jury trial was held on the charges

. ¶ 3 As relevant to this appeal, Kristin Drewieck, an employee of the State Lab of Hygiene who had been employed by the lab since 1993 and is an “advanced chemist and the quality assurance quality control coordinator for th e foren sic toxicology program,” confirmed during her testimony that she and “ all of the analysts

. .. at the State Lab [ of ] Hygiene .. . hold ” a “valid alcohol analysis permit issued by the s tate. ” (Emphasis added.) Later in her testimony, she acknowledged that w hile she herself did not analyze Pierquet’s blood sample at the lab, another lab analyst, Michelle Ehlers, did so on August 23, 2018.

¶ 4 When the State questioned Drewieck as to the level of alcohol in Pierquet’s blood sample, counsel for Pie rquet objected “on foundation.” T he
circuit c ourt overruled the objection, and Drewieck testified that t he alcohol level
was .189 BAC. O utside the presence of the jury , counsel later explained that his foundation objection was based upon W IS

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. § 907.02, “Testimony by experts,” asserting that Drewieck “gave an expert opinion that ... the manner inNo. 2019AP 2099

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3 which she reviews the documents can get her to the test result is correct. I don’t
think [the State] established a sufficient foundation under [§ ] 907.02 that that manner is an ap propriate manner for doing it.” The court again overruled the objection, explaining that Drewieck

testified as to what the general procedure was at the time. She testified as to how things are normally done. She testified what h er peer review consisted of. And she testified as to her independent opinion that there was ethanol in the blood and what the l evel was based on her analysis.
The court stated that it was “comfortable with how the evidence was presented”
and maintained it s decision overruling counsel’s foundation objection.

¶ 5 Following the close of testimony, during the jury instruction conference, counsel objected to a portion of a jury instruction indicating that the
blood alcohol results are to be give n prima facie effect. Counsel stated:

I don’t think that the State has established that the provisions of [ W IS

. S TAT

. § ] 343.305 have been complied with. I think compliance is required to get the presumptions. And I think under [§] 343.305(6), they have to establish that the person drawing the blood has to have a valid permit for drawing the blood. I don’t think that they’ve established that here. So I don’t think the pri ma facie fact language gets in.
The court disagreed stating , “I think that the record is sufficient to allow for that.
So ... t hat la nguage is going to remain in.”

¶ 6 Pierquet was found not guilty on the OWI charge but guilty on the prohibited BAC charge and now appeals his conviction.No. 2019AP 2099

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4 Discussion

¶ 7 Pierquet contends the circuit court erred in admitting the .189 BAC results and in giving the results prima facie effect. His argument centers completely on his position that the State failed to establish that the lab analyst who perf ormed the analysis on his blood sample possessed a valid permit, as required by W IS

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. § 343.305 (6)(a) , “and/or that the permit was valid on the day she analyzed Mr. Pierquet’s blood

. ”

¶ 8 We will not reverse a circuit court ’ s decision to admit evidence at a trial unless the appellant, here Pierquet, demonstrates that the court erroneously
exercised its discretion. See Gaethke v. Pozder , 2017 WI App 38, ¶36, 376
Wis. 2d 448, 899 N.W.2d 381 ( “ [O] n appeal ‘ it is the burden of the appellant to demonstrate that the [circuit] court erred

. ’” ( second alteration in original; citation
omitted ) ) ; State v. Weed , 2003 WI 85, ¶9, 263 Wis. 2d 434, 666 N.W.2d 485 (“The circuit court has broad discretion in determining the relevance and
admissib ility of evidence and its decision will not be reversed absent an erroneous
exercise of discretion. ”) . Additionally, “ [a] circuit court has broad discretion in deciding whether to give a requested jury instruction.” State v. Stietz , 2017 WI 58, ¶12, 375 Wis. 2d 572, 895 N.W.2d 796

. ¶ 9 To begin, Pierquet’s challenge to the admission of the BAC results fails right out of the gate because he raised no objection at trial to the admission of
this evidence on the basis that the State had not established that the analyst who analyzed his blood sample possessed a valid permit. His only challenge to the admission of the results was based upon W IS

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. § 907.02. Because he failed
to raise at trial the challenge he now raises regarding admissio n of the results, he forfeited this challenge. See State v. Rogers , 196 Wis. 2d 817, 826

- 27 , 539No. 2019AP 2099

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5 N.W.2d 897 (Ct. App. 1995). But e ven if he had not forfeited this challenge, it
would nonetheless fail on the merits for the reasons noted below with regard to his challenge related to the prima faci e effect of his BAC results

. See infra ¶¶ 1 0

- 12.

¶ 10 As to Pierquet’s challenge to the circuit court instructing the jury as to the prima facie effect of those results, we conclude the circuit court did not err in its determination that “the record is sufficient to allow for that.” I ndeed, we
agree the record i s sufficient.

¶ 11 On appeal, we are to search the record for evidence sustaining the circuit court’s discretionary decisions. State v. Sullivan , 216 Wis. 2d 768, 781,
576 N.W.2d 30 (1998) (“ When a circuit court fails to set forth its reasoning, appellate courts independently review the record to determine whether it provide s a basis for the circuit court’ s exercise of discretion. ”). Here, we need not look far
as Drewieck testified that Ehlers was the lab analyst who analyzed Pierquet’s
blood sample and that “all of the analysts .. . at the [l ab ]

... hold” a “valid alcohol analysi s permit issued by the State.” Since Ehler s is one of “all” of the analysts, Drewieck effectively testified that Ehlers held the permit that Pierquet claims is necessary for the blood test results to be given prima facie effect. The court did not erroneously exercise its discretion.

¶ 12 Although Pierquet fails to develop an argument on th e point, he briefly suggests that the BAC results should not have been admitted or given prima facie effect because the State failed to establish that the analyst had a permit
that was valid “ on th e day ” she analyzed Pierquet’s blood sample. He is mistaken.
A t the jury instruction conference , Pierquet argued that the State has to “ establish that the person drawing the blood has

... a valid permit for drawing the blood. I don’t think that they’ve es tablished that here. So I don’t think t he prima facie factNo. 2019AP 2099

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6 language gets in

. ” T he circuit c ourt “disagree [d]” and, as noted, found that “ the
record is sufficient to allow for that.” Implicit in this exchange is the finding by the court that analyst Ehlers did not just have a valid permit at some time in her life, but had a valid permit when she analyzed Pierquet’s blood sample. This finding is sufficiently supported by Drewieck’ s testimony that “all of the analysts

.. . at the State Lab [ o f

] Hygiene

. .. hold” a “valid alcohol analysi s permit issued by the State.” This testimony indicates that Ehlers could not have been a n analyst at the lab unless she held “a valid alcohol analysis permit issued by the State.” And there is no dispute that Ehlers was in fact a n analyst at the lab at the time she analyzed Pierquet’s sample. T herefore, the court ma de no error in utilizing the prima facie jury instruction or in admitting the testimony as to the results of the analysis of Pierquet’s blood.

By the Court.

— Judgment affirmed.
This opinion will not be published. See W IS

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. R ULE 809.23(1)(b)4.