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 WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2019AP2099-CR Cir. Ct. No. 2018CT351

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT II

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

MICHAEL J. PIERQUET,

 DEFENDANT-APPELLANT.

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 WIS. STAT. § 752.31(2)(f) (2017-18). 

All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted.
No. 2019AP2099-CR

2

concentration (BAC), 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 failed 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 

BAC, 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 the 

forensic 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 state.” (Emphasis added.) Later in her testimony, she 

acknowledged that while 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 Pierquet objected “on foundation.” The 

circuit court overruled the objection, and Drewieck testified that the alcohol level 

was .189 BAC. Outside the presence of the jury, counsel later explained that his 

foundation objection was based upon WIS. STAT. § 907.02, “Testimony by 

experts,” asserting that Drewieck “gave an expert opinion that ... the manner in 
No. 2019AP2099-CR

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 appropriate 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 her peer review consisted of. And she 

testified as to her independent opinion that there was 

ethanol in the blood and what the level was based on her 

analysis.

The court stated that it was “comfortable with how the evidence was presented”

and maintained its 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 given prima facie effect. Counsel stated:

I don’t think that the State has established that the 

provisions of [WIS. STAT. § ]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 prima 

facie fact language gets in.

The court disagreed stating, “I think that the record is sufficient to allow for that.

So ... that language 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. 2019AP2099-CR

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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 

performed the analysis on his blood sample possessed a valid permit, as required 

by WIS. STAT. § 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 

admissibility 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 WIS. STAT. § 907.02. Because he failed 

to raise at trial the challenge he now raises regarding admission of the results, he 

forfeited this challenge. See State v. Rogers, 196 Wis. 2d 817, 826-27, 539 
No. 2019AP2099-CR

5

N.W.2d 897 (Ct. App. 1995). But even 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 facie effect of his BAC results. See infra ¶¶10-12.

¶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.” Indeed, we 

agree the record is 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 provides 

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 [lab] ... hold” a “valid alcohol 

analysis permit issued by the State.” Since Ehlers 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 the 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 the day” she analyzed Pierquet’s blood sample. He is mistaken. 

At 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 established that here. So I don’t think the prima facie fact 
No. 2019AP2099-CR

6

language gets in.” The circuit court “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 [of] Hygiene ... hold” a “valid alcohol analysis permit issued by 

the State.” This testimony indicates that Ehlers could not have been an 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 an analyst at the lab at the time she 

analyzed Pierquet’s sample. Therefore, the court made 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 WIS. STAT. RULE

809.23(1)(b)4.