Appeals court upholds conviction of man found sleeping at gas station
In a decision issued last week, an appeals court judge affirmed a St. Croix County court judgment finding an Amery man guilty of operating with a controlled substance, fourth offense.
Matthew Owen Hoff Jr., now 34, argued that the St. Croix County deputy who arrested him didn't have probable cause because, Hoff said, no evidence of drugs or alcohol was found on him or in his vehicle and "most of the field sobriety tests revealed no clues of impairment."
Hoff claimed Judge Scott Needham should have suppressed the officer's evidence and also that Needham violated Hoff's constitutional right to confront his accusers by allowing testimony from a State Laboratory of Hygiene supervisor, rather than the analysts who tested his blood.
According to background in the decision, at about 6:30 a.m. Nov. 9, 2008, St. Croix County Deputy Scott Gostovich was dispatched to a gas station where a man was sleeping behind the wheel of a running motor vehicle in the parking lot.
Gostovich testified that he and his partner found Hoff asleep in a vehicle parked horizontally against the vertical parking stalls and Hoff didn't waken when they shouted and knocked on the window and door. He awakened when the deputies simultaneously opened the driver and passenger-side doors.
Gostovich attributed Hoff's initial disorientation and confusion to that of a person who had just awakened. But, said the officer, Hoff's "level of disorientation did not dissipate as it normally would from someone who had just arose from sleep."
The officers patted Hoff down for weapons and found a container with Cymbalta. Gostovich also saw a translucent "gem bag" with a small amount of white crystalline residue in the vehicle. He said he knew "gem bags" are commonly used to carry illegal drugs.
When the deputy administered field sobriety tests, Hoff did fine on two, but had trouble with the heel-to-toe steps and with keeping his balance.
A preliminary breath test indicated "zero," but Gostovich arrested Hoff for driving while under the influence and driving with a controlled substance, 4th offense.
Hoff subsequently pleaded no contest to the controlled substance charge, and the DWI charge was dismissed in a plea agreement. He was sentenced to 150 days in jail and fined $746.
District III Court of Appeals Judge Mark Mangerson found that "based on the totality of the circumstances, Gostovich had probable cause to believe Hoff was operating his vehicle under the influence of a controlled substance."
Laura Liddicoat, a state lab supervisor, testified that samples of Hoff's blood tested positive for cocaine, methamphetamine and amphetamine.
Hoff argued that the supervisor should not have been allowed to testify against him because she had not physically conducted any of the tests of his blood.
Mangerson noted that the Wisconsin Supreme Court has ruled that a unit leader, rather than the analyst who performed the test, can testify.
"Liddicoat has considerable training and experience and developed the laboratory's methods and procedures," wrote Mangerson. "She supervises the laboratory's chemists, assesses their competence, and, in this case, served as the original peer reviewer for the methamphetamine and amphetamine test results.
"Finally, after reviewing the laboratory records, Liddicoat offered an independent opinion about the reported test results."